EXCHANGE 


'A  'N 


THE    ROOSEVELT    PANAMA 
LIBEL  CASE 


AGAINST 

THE  NEW  YORK  WORLD 

[The  United  States  vs.  The  Press  Publishing  Co.] 

. 


A  BRIEF  HISTORY  OF  THE  ATTEMPT  OF  PRESIDENT 

ROOSEVELT  BY  EXECUTIVE  USURPATION  TO 

DESTROY  THE  FREEDOM  OF  THE  PRF/^S 

IN  THE  UNITED  STATES 

TOGETHER  WITH  THE 

TEXT  OF  THE  UNANIMOUS  DECISION  OF  THE  UNITED 

STATES   SUPREME  COURT  HANDED  DOWN 

BY  MR.  CHIEF  JUSTICE  WHITE 

AFFIRMING 

THE    ACTION   OF   JUDGE    HOUGH    OF    THE    UNITED 

STATES  DISTRICT   COURT  IN  QUASHING 

THE  INDICTMENT. 


PTUXTRD    FOIl    TITI-:    XK\Y    V 
1911. 


WORLD 


THE    ROOSEVELT    PANAMA 
LIBEL  CASE 

AGAINST 

THE  NEW  YORK  WORLD 

[The  United  States  vs.  The  Press  Publishing  Co.] 


A  BRIEF  HISTORY  OF  THE  ATTEMPT  OF  PRESIDENT 

ROOSEVELT  BY  EXECUTIVE   USURPATION  TO 

DESTROY  THE  FREEDOM  OF  THE  PRESS 

IN  THE  UNITED  STATES 

TOGETHER  WITH  THE 

TEXT  OF  THE  UNANIMOUS  DECISION  OF  THE  UNITED 

STATES   SUPREME  COURT  HANDED  DOWN 

BY  MR.  CHIEF  JUSTICE  WHITE 

AFFIRMING 

THE    ACTION    OF   JUDGE    HOUGH    OF    THE    UNITED 

STATES  DISTRICT  COURT  IN  QUASHING 

THE  INDICTMENT 


I'RINTIiD   FOR    THE    NJfiW   YORK    WORLU 
19x1 


\°l  if 


Copyrighted.  1911,  by 

TKB  PRESS  PUBLISHING  OO. 

(The  New  York  World.) 


The  New  York  World  herewith  presents  the  'beginning 
and  end  of  President  Roosevelts  vigorous  'but  abortive  at 
tempt  "by  executive  usurpation  to  destroy  the  freedom  of  the 
press  in  the  United  States,  to  re-establish  the  principle  of  the 
odious  Alien  and  Sedition  laws  and  to  create  here  the  doc 
trine  of  lese-majesty.  Lasting  quietus  was  put  on  the  suits, 
which  he  instructed  his  Attorney-General  to  institute  against] 
The  World  and  its  proprietor  and  editors,  on  January  3,  1911, 
when  Chief  Justice  White  handed  down  the  unanimous  de 
cision  of  the  United  States  Supreme  Court  affirming  the 
action  of  Judge  Hough  of  the  United  States  Court  for  the 
Southern  District  of  New  York  in  quashing  the  indictment 
against  the  newspaper  January  26,  1910. 

As  a  matter  of  record  it  may  "be  added  that  fallowing  this 
decision  the  United  States  Attorney  for  the  District  of  Colum 
bia  in  due  course,  on  March  31,  by  direction  of  Attorney-Gen 
eral  Wickersham,  moved  in  court  in  Washington  the  dismissal 
of  the  indictments  found  there  on  Feb.  17,  1909,  against  The 
World,  its  proprietor  and  editors,  and  also  those  against  the 
Indianapolis  News,  its  publisher  ana  editor.  The  Court  so 
ordered. 

Thus  ends  The  World's  fight  for  the  freedom  of  the  press, 
with  the  crushing  defeat  of  the  last  truculent  lawless  attack. 

New  York,  April,  1911, 


341568 


HISTORY  OF  THE 

ROOSEVELT  PANAMA  LIBEL  CASE 

NOW  ENDED   BY 

SUPREME   COURT   DECISION 


HOW  THE  WORLD  CAME  TO  PRINT  THE 
FAMOUS  NEWS  ARTICLE  OF  OCT.  3,  1908; 
WILLIAM  NELSON  CROMWELL'S  PART  IN 
JTS  PUBLICATION;  THE  WORLDS  DEMAND 
FOR  A  CONGRESSIONAL  INVESTIGATION; 
PRESIDENT  ROOSEVELT'S  ATTACK  IN  A 
SPECLVL  MESSAGE,  AND  THE  LONG  LEGAL 
FIGHT  THAT  FOLLOWED. 


Mr.  Roosevelt's  Panama  libel  suit  against  The  World 
had  its  genesis  during  the  last  Presidential  campaign  in 
a  complaint  made  by  William  ^Nelson  Cromwell  through 
Ids  lawyer,  W.  J.  Curtis,  to  District-Attorney  Jerome 
on  Oct.  1,  1908,  that  certain  persons  were  trying  to 
blackmail  him  by  reason  of  his  connection  with  the  sale 
of  the  Panama  Canal  to  the  United  States. 

On  Oct.  2  The  World  received  information  of  Mr. 
Orom well's  complaint,  and  a  reporter  was  sent  out  to 
cover  the  story.  He  was  unable  to  get  any  confirmation 
from  the  District- Attorney's  office,  and  so  reported  to 
the  city  editor.  Nothing  was  written  and  the  matter 
was  dropped. 

Late  the  same  evening  Jonas  Whitley,  a  former  news 
paper  man  employed  by  Mr.  Cromwell  as  a  press  agent, 
came  to  The  World  office  and  told  the  managing  editor 
that  The  World  was  about  to  print  a  Panama  news  arti 
cle  that  was  entirely  false.  The  managing  editor  knew 
not  hing  about  it,  so  he  inquired  at  the  city  editor's  desk. 
He  was  told  that  The  World  had  no  Panama  article  of 
any  kind  or  description,  but  that  it  had  been  trying  to 
verify  a  report  of  a  complaint  made  by  Mr.  Cromwell 
to  the  District- Attorney  and  had  been  unable  to  do  so. 

Mr.   Whitley  Stated  Substance  of  the  Complaint. 

Mr.  Whitley  had  voluntarily  related  the  substance  of 
the  complaint.  He  said  that  the  persons  who  were  al 
leged  to  be  trying  to  blackmail  Mr.  Cromwell  pretended 
that  Charles  P.  Taft  and  Douglas  Robinson  were  mem 
bers  of  a  syndicate  interested  in  the  sale  of  the  Panama 
Canal,  and  these  persons  threatened  to  exploit  the  story 
for  political  purposes  unless  Mr.  Cromwell  bought  them 
off. 

A  synopsis  of  Mr.  Whitley's  account  of  the  Cromwell 
complaint  was  then  dictated  to  a  stenographer,  and  the 
typewritten  copy  was  turned  over  to  Mr.  Whitley  to  revise. 
This  manuscript  is  still  in  possession  of  The  World. 
It  shows  that  Mr.  Whitley  scratched  out  the  name  of  Charles 
P.  Taft  and  substituted  the  name  of  Henry  W.  Taft.  Then 
he  erased  the  name  of  Henry  W.  Taft  and  restored  the  name 
of  Charles  P.  Taft. 


8 


The  news  article,  as  revised  by  Mr.  Whitley,  was 
printed  in  The  World  the  following  morning,  C 
1908.    It  contained  the  following: 


in  brief  Mr.  Curtis  told  Mr.  Jerome  it  had  been 
to  Mr.  Cromwell  that  the  Democratic  National  Committ 
considering  the  advisability  of  making  public  a  statement  t 

1  William   Nelson    Cromwell,   in    connection   with    Mr 
Varilla   a  French  speculator,  had  formed  a  syndicate  at  the 
time  -when  it  was  quite  evident  that  the  United  States  wduld 
take  over  the  rights  of  the  French  bondholders  in  the  De  Lease 
canal,  and  that  this  syndicate  included  among  others 

i  P  Taft  brother  of  Widliam  H.  Taft,  and  Douglas  Robinson, 
brother-in-law  of  President  Roosevelt.  Other  men  more  promi 
nent  in  the  New  York  world  of  finance  were  also  mentioned. 
According  to  the  story  unfolded  by  Mr.  Curtis  it  was  said  that 
*  *  *  these  financiers  invested  their  money  because  of  a  full 
knowledge  of  bhe  intention  of  the  Government  to  acquire  the 

'French  property  at  a  price  of  about  $40,000,000,  and  thus— 
because  of  the  alleged  information  'from  high  Government 
sources  —  were  enabled  to  reap  a  rich  profit 

After  Mr.  Whitley  had  finished  revising  this  article 
he  telephoned  to  Mr.  Cromwell,  and  then  told  the  man 
aging  editor  of  The  World  that  Mr.  Cromwell  would 
like  to  make  a  statement. 

Very  late  that  night  Mr.  Cromwell  telephoned  to  The 
World  office  and  dictated  a  statement  to  one  of  The  World's 
stenographers.  The  stenographer's  notes  were  read  over 
to  him  to  make  sure  that  there  was  no  error;  he  approved 
them  and  this  statement  was  printed  exactly  as  dictated  by 
Mr.  Cromwell. 

It  said  in  part  : 

Neither  I  nor  any  one  allied  with  me,  either  directly  or  in 
directly,  at  any  time  or  in  any  place  in  America  or  abroad, 
ever  bought,  said,  dealt  in  or  ever  made  a  penny  of  profit  out  of 
any  stocks,  bonds  or  other  securities  of  either  the  old  Panama 
Canal  Company  or  the  new  Panama  Canal  Company,  or  ever 
received  for  the  same*  a  single  dollar  of  the  forty  millions  paid 
by  the  United  States.  I  make  this  the  most  sweeping  state 
ment  that  language  can  convey.  As  everybody  connected  with 
the  affair  knows,  I  abstained  from  receiving  the  forty  millions 
in  my  own  hands  at  Washington  or  New  York  as  the  general 
counsel  of  the  company,  and  myself  arranged  for  the  payment 
of  the  entire  forty  millions  direct  from  the  Treasury  of  the 
United  States  through  the  bankers  of  the  Government  into 
the  Bank  of  France  at  Paris  to  the  credit  of  the  liquidators 
of  the  two  companies.  There  it  remained  subject  to  the  order 
of  the  liquidators  until  distributed  by  them  to  the  hun 
dreds  of  thousands  of  (beneficiaries,  and  not  one  dollar  of  it 
ever  came  to  me  or  any  one  in  any  wise  connected  with  me, 
Of  course  I  do  not  refer  to  our  regular  compensation  as  counsel. 
I  suppose  It  will  be  years  before  the  beneficiaries  will  all  be 
identified  and  the  distribution  completely  made. 


The  Cromwell  complaint  was  never  submitted  to  a 
Grand  Jury;  there  was  no  Grand  Jury  inquiry  as  to  this 
alleged  attempt  at  blackmail,  and  the  legal  proceeding* 
on  Mr.  Cromwell's  part  against  the  alleged  blackmailers 
ended  with  the  filing  of  the  Cromwell  complaint. 

It  was  Mr.  Cromwell's  complaint  and  that  alone  which 
brought  the  name  of  Charles  P.  Taft  into  the  Panama 
matter.  It  was  Mr.  Cromwell's  press  agent  who  brought 
the  names  of  Charles  P.  Taft  and  Douglas  Robinson  into 
The  World  office.  But  for  Mr.  Cromwell  it  is  probable  that 
no  Panama  story  would  have  been  printed  during  the  cam 
paign,  and  it  is  certain  that  the  names  of  Charles  P.  Taft 
and  Douglas  Robinson  would  never  have  been  published 
in  connection  with  the  affair. 

Indebted  to  Mr.  Cromwell  for  Notoriety. 

When  Mr.  Cromwell's  complaint  was  made  public 
Mr.  Charles  P.  Taft  emphatically  denied  that  he  had 
any  connection  whatever  with  a  Panama  syndicate  or 
with  the  sale  of  the  canal.  Mr.  Robinson  refused  to  dis 
cuss  the  matter  for  publication.  It  is  fair  to  say  that 
the  information  in  the  possession  of  The  World  com 
pletely  substantiates  Mr.  Charles  P.  Taft's  denial  that 
he  had  any  interest,  direct  or  indirect,  in  the  sale  of  the 
Panama  Canal.  Why  his  name  should  have  appeared  in 
Mr.  Cromwell's  complaint  to  Mr.  Jerome  The  World 
has  no  means  of  knowing.  As  to  Mr.  Douglas  Robinson 
there  is  nothing  to  show  that  he  was  an  associate  of  Mr. 
Cromwell's  in  the  sale  of  the  canal.  He  also  is  indebted 
solely  to  Mr.  Cromwell  for  the  notoriety. 

Great  interest  was  aroused  in  political  circles  by  Mr. 
Cromwell's  complaint,  and  The  World,  as  \rall  as  other 
newspapers,  tried  to  ascertain  if  any  facts  could  be  dis 
covered  in  addition  to  those  which  had  been  dragged  to 
light  by  Senator  Morgan  in  1906  in  the  course  of  the 
investigation  of  the  Panama  Canal  matter  by  a  com 
mittee  of  the  Jnited  States  Senate,  which  investigation 
had  been  thwarted  by  Mr.  Cromwell's  refusal  to  answer 
the  most  pertinent  questions  put  to  him  on  the  ground 
that  as  counsel  for  the  !N"ew  Panama  Canal  Company 
his  relations  with  the  canal  vendors  were  privileged  and 
confidential 


<  - 


10 

Unsuccessful  attempts  were  made  to  get  at  the  rec 
ords  in  Paris  and  Washington.  The  World  at  great  ex 
pense  retained  an  eminent  English  lawyer,  a  member 
•1'  Parliament,  who  went  to  Paris  and  made  an  investi 
gation  on  behalf  of  this  paper.  Very  little  additional 
information  could  "he  obtained,  and  he  reported  in  part 
as  follows: 

I  have  nevor  known  in  my  lengthy  experience  of  company 
matters,  any  public  corporation,  much  less  one  of  such  vast 
importance,  having  so  completely  disappeared  and  removed 
all  traces  of  its  existence  as  the  New  Panama  Canal  Company. 

This  company  having  purchased  the  assets  of  La  Oompagnie 
Universelle  du  Canal  Interooeanique  de  Panama  (the  old  or 
De  Lesseps  Panama  Canal  Company) ,  brought  off  the  deal  with 
the  American  Government.  So  thorough  has  been  its  oblit 
eration  that  only  the  United  States  Government  can  now 
give  information  respecting  the  new  company's  transactions 
and  the  identity  of  the  individuals  who  created  it  to  effectu 
ate  this  deal,  and  who  for  reasons  best  known  to  themselves 
wiped  it  off  the  face  of  the  earth  when  the  deal  was  carried 
through.  *  *  I  consulted  'leading  French  lawyers,  and 
they  declared  that  there  was  no  machinery,  legal  or  other 
wise,  by  which  its  records  could  be  (brought  to  light.  *  *  * 
The  stock  of  the  new  company  was  originally  registered,  so 
transactions  in  it  could  toe  traced,  tout  power  was  subsequently 
obtained  to  transform  it  into  "bearer"  stock,  which  passed 
from  hand  to  hand  without  any  record  being  preserved  *  *  '* 
There  is  nothing  to  show  the  names  of  the  owners  of  the  stock 
at  the  time  of  the  liquidation  of  the  company  and  who  actually 
received  their  proportions  of  the  purchase  mom'ey  paid  by  the 
United  States.  *  *  *  No  record  exists  here  of  a  single  per 
son  who  received  the  money  or  of  the  (proportions  in  which  it 
was  paid.  The  liquidation  of  the  new  company  was  finally 
closed  on  June  30  last,  and  the  offices  of  the  liquidators  were 
shut.  No  one  is  there  to  give  the  slightest  information  con 
cerning  it,  although  questions  are  still  arising  necessitating 
information.  The  American  Ambassador  in  Paris  was  entitled 
to  the  archives  of  the  company  for  his  Government,  and  those 
archives  should  include  a  list  of  the  persons  who  received  the 
purchase  money  paid  by  the  United  States. 

Charges  Were  Unchallenged  During   Campaign. 

In  all  The  World  printed  six  articles  on  the  Panama 
Canal  purchase  and  on  the  Panama  revolution  of  1903, 
giving  currency  to  the  charges  that  there  was  a  syndi 
cate  of  Americans  who  were  interested  in  and  received 
some  of  the  $40,000,000  which  the  United  States  paid 
to  the  French  canal  company  for  the  canal  property,  and 
that  the  Administration  at  Washington  and  some  of  the  in 
dividuals  who  then  composed  it  were  cognizant  of  and  had  sup 
ported  the  plans  for  the  revolution  in  Panama  as  a  result 


m 

of  which  the  present  Republic  of  Panama  seceded  from  the 
Republic  of  Colombia  and  gave  to  the  United  States  those 
sovereign  rights  over  the  Canal  Zone  which  under  its  Con 
stitution  Colombia  was  unable  to  grant. 

These  articles  were  reproduced  in  cmany  papers 
throughout  the  country,  and  Mr.  Rainey  of  Illinois 
expressed  his  intention  of  forcing  a  full  Congressional 
investigation,  if  possible,  when  Congress  convened  in 
December. 

At  this  time  Mr.  Roosevelt,  oblivious  of  the  traditions 
of  his  high  office,  was  personally  managing  Mr.  Taft's 
candidacy.  Regardless  of  his  obligations  as  President 
of  the  United  States,  he  had  taken  charge  of  the  Repub 
lican  campaign  and -was  the  actual  boss  of  the  Republi 
can  party.  He  allowed  the  Panama  charges  to  pass  un 
challenged,  paid  no  attention  to  the  Panama  articles  and 
refused  to  regard  Panama  as  an  issue.  Much  less  did  he 
look  upon  these  articles  as  a  libel  upon  the  United  States 
Government,  upon  himself  or  upon  any  of  his  associates. 

On  the  day  before  election,  however,  the  Indiaimp- 
olis  News,  the  leading  paper  in  Indiana,  which  had  re 
fused  to  support  the  Republican  national  and  State, 
tickets  in  the  campaign,  printed  an  editorial  on  the 
Panama  scandal  and  asking  who  got  the  $40,000,000 
the  United  States  had  paid  for  the  canal.  Morally  the 
election  in  Indiana  was  a  decisive  Republican  defeat, 
as,  although  Mr.  Taft  carried  the  State  by  a  narrow  plu 
rality  of  10,731,  a  Democratic  Governor  and  a  Demo 
cratic  Legislature  were  elected,  a  Democrat  was  sent  to 
the  United  States  Senate  in  place  of  Mr.  Hernenway, 
and  only  three  Republican  Representatives  were  elected 
out  of  a  delegation  of  thirteen.  Mr.  Roosevelt  and  Mr. 
Roosevelt's  friends  were  greatly  mortified  and  attrib 
uted  the  result  largely  to  the  Indianapolis  News. 

President  Roosevelt  Breaks  Out  in  Denunciation. 

Accordingly,  on  Nov.  29,  1908,  William  Dudley 
Foulke  (the  convenient  gentleman  to  whom  Mr.  Roose 
velt  wrote  the  famous  letter: denying  that  he  had  used 
the  Federal  patronage  to  bring  about  Mr,  Taft's  nomi 
nation)  sent  to  the  President  the  Panama  editorial 
printed  in  the  Indianapolis  News  on  Nov.  2,  and  in 
formed  Mr.  Roosevelt  that  "if  the  statements  of  the 


12 

News  are  true  our  people  ought  to  know  it ;  if  not  true, 
they  ought  to  have  some  just  means  of  estimating  wni 
credit  should  be  given  in  other  matters  to  a  join 
which  disseminates  falsehoods." 

Mr.  Koosevelt  in  reply  on  Dec.  1,  1908,  denounced 
the  conduct  of  Mr.  Delavan  Smith,  editor  of  the  In 
dianapolis  News,  as  "not  merely  scandalous  but  infa 
mous."  He  called  him  "a  conspicuous  offender  againsi 
the  laws  of  honesty  and  truthfulness,"  occupying  "the 
same  evil  eminence  with  such  men  as  Mr.  Laffan  of  the 
New  York  Sun."  He  said  that  such  newspapers  as  the 
Indianapolis  News  and  the  New  York  Sun  "habitually 
and  continually  and  as  a  matter  of  business  practise 
every  form  of  mendacity  known  to  man  ;"^  that  "the 
most  corrupt  financiers,  the  most  corrupt  politicians  are 
no  greater  menace  to  the  country  than  the  newspaper 
men  of  the  type  I  have  described." 

Dealing  with  the  purchase  of  the  Panama  Canal,  Mr. 
Roosevelt  asserted  that  the  United  States  "PAID  $40,000,- 
000  DIRECT  TO  THE  FRENCH  GOVERNMENT,  getting 
the  receipt  of  the  liquidator  appointed  by  the  French 
Government  to  receive  the  same;"  that  "the  United  States 
Government  has  not  the  slightest  knowledge  as  to  the 
particular  individuals  among  whom  the  French  Gov 
ernment  distributed  the  sum;"  that  "this  was  the  busi 
ness  of  the  French  Government;"  that  "so  far  as  I 
know  there  was  no  syndicate;"  that  "there  certainly 
was  no  syndicate  in  the  United  States  that  to  my  knowl 
edge  had  any  dealings  with  the  Government,  directly  or 
indirectly;"  that  "the  people  have  had  the  most  minute 
official  knowledge"  of  the  Panama  affair;  that  "even 
important  step  and  every  important  document  have 
been  made  public,"  and  that  the  "abominable  false 
hood"  that  any  American  citizen  had  profited  from  the 
sale  of  the  Panama  Canal  "is  a  slander  not  against  the 
American  Government,  but  against  the  French  Gov 
ernment." 

The  World's  Editorial  Reply  to  President  Roosevelt. 

Up  to  this  time  The  World  had  not  discussed  the  Pan 
ama  matter  editorially,  but  when  Mr.  Roosevelt  went 
so  far  as  to  tell  the  American  people  that  the  United 
States  Government  "paid  the  $40,000,000  direct  to  the 


13 


French  Government'7  it  seemed  to  The  World  that  the 
time  had  arrived  when  the  country  -was  entitled  to  the 
truth,  the  whole  truth  and  nothing  but  the  truth.  In  an 
editorial  flatly  challenging  some  of  Mr.  Roosevelt's 
statements,  and  proving  its  case  by  the  official  records, 
The  World  demanded  a  Congressional  investigation  into 
the  Panama  scandal.  It  said: 

In  view  of  President  Roosevelt's  deliberate  misstatements  of 
facts  In  his  scandalous  personal!  attack  upon  Mr.  Delavan 
Smith  of  the  Indianapolis  News,  The  World  calls  on  the  Con 
gress  of  the  United  States  to  make  immedlateily  a  lull  and 
imipartlal  Investigation  of  the  entire  Panama  Canal  scandal. 
•  •  •• 

The  natural  query  of  the  Indianapolis  News  as  to  "Who  Got 
the  Money?"  was  based  on  The  World's  historical  summary  of 
Mr.  Cromwell's  connection  with  the  Panama  Canal.  The 
inquiry  was  originally  The  World's  and  The  World  accepts 
Mr.  Roosevelt's  challenge.  If  Congress  can  have  all  the 
documents  in  the  case,  as  Mr.  Roosevelt  says,  let  Congress  make 
a  full  and  complete  investigation  of  the  Panama  Canal  affair, 
and  in  particular  of  William  Nelson  Cromwell's  relations  with 
the  French  company,  with  Panama  and  with  the  Government 
of  the  United  States.  Let  Congress  officially  answer  the 
question,  "Who  Got  the  Money?"  *  *  * 

Mr.  Roosevelt  says  "the  Government  paid  this  $40,000,000 
direct  to  the  French  Government;"  Mr.  Cromwell  testifies  that 
the  United  States  paid  the  money  to  J.  P.  Morgan  &  Co.  Mr. 
Roosevelt  says  "the  French  Government  distributed  the  sum;" 
Mr.  Cromwell  testified  as  to  how  he  districted  It.  Mr.  Roose 
velt  talks  of  "getting  the  receipt  of  the  liquidator  appointed 
iby  the  French  Government  to  receive  the  same;"  Mr.  Cromwell 
testified:  "Of  the  $40,000,000  thus  'paid  by  the  United  States 
Government  $25,000,000  was  paid  to  the  liquidator  of  the  old 
Panama  Canal  Comtpany  under  and  In  pursuance  of  an  agree 
ment  entered  into  "between  the  liquidator  and  the  new  com 
pany.  Of  the  (balance  of  $15,000,000  paid  to  the  New  Panama 
Canal  Company  $12,000,000  have  already  been  distributed 
among  its  stockholders  and  the  remainder  is  now  being  held 
awaiting  final  distribution  and  payment"  *  •  * 

Whether  Douglas  Robinson,  who  is  Mr.  Roosevelt's  brother- 
in-law,  or  any  of  Mr.  Taft's  brothers  associated  himself  with 
Mr.  Cromwell  in  Panama  exploitation,  or  shared  in  these  prof 
its,  Is  incidental  to  the  main  issue  of  letting  in  the  light. 
Whether  they  did  or  not,  whether  all  the  (profits  went  into 
William  Nelson  Cromwell's  hands  or  whatever  became  of 
them,  the  fact  that  Theodore  Roosevelt,  as  President  of  the 
United  States,  issued  a  puiblic  statement  about  such  an  impor 
tant  matter  full  of  flagrant  untruths,  reeking  with  misstate- 
ments,  challenging  line  toy  line  the  testimony  of  his  associate 
Cromwell  and  the  official  record,  makes  It  imperative  that  full 
publicity  come  at  once  through  the  authority  and  by  the 
action  of  Congress. 

President  Roosevelt  then  took  steps  to  find  out  if, 
among  the  records  and  archives  received  by  the  Isth- 


14 

mian  Canal  Commission  from  the  New  Panama  Canal 
Company  there  were  any  compromising  documents^  In 
obedience  to  his  orders  the  documents  were  examined 
by  Judge  Paul  Charlton  of  the  War  Department  and 
Mr.  Kogers,  general  counsel  of  the  Isthmian  Canal 
Commission.  Their  report  was  transmitted  by  Gen. 
Luke  Wright,  then  Secretary  of  War,  to  President 
Roosevelt  on  Dec.  14,  1908.  It  was  to  the  effect  that 
the  records  and  archives  received  from  Paris  contained 
solely  engineering  data. 

President  Roosevelt's  Amazing  Special  Message. 

On  the  following  day  President  Roosevelt  sent  a  spe 
cial  message  to  the  Congress  of  the  United  States  which 
is  unique  in  American  history.  In  it  he  said: 

In  view  of  the  constant  reiteration  of  the  assertion  that 
there  was  some  corrupt  action  by  or  on  behalf  of  the  United 
States  Government  in  connection  with  the  acquisition  of  the 
title  of  the  French  company  to  the  Panama  Canal,  and  of  the 
repetition!  of  the  story  that  a  syndicate  of  American  citizens 
owned  either  one  or  'both  of  the  Panama  companies,  I  deem  it 
wise  to  submit  to  the  Congress  all  the  information  I  have  on 
the  subject.  These  stories  were  first  brought  to  my  attention 
as  published  in  a  paper  in  Indianapolis  called  the  News,  edited 
by  Mr.  Delavan  Smith.  These  stories  were  scurrilous  and 
libellous  in  character  and  false  in  every  essential  particular. 
Mr.  Smith  shelters  himself  behind  the  excuse  that  he  merely 
accepted  the  statement  which  had  appeared  in  a  paper  pub 
lished  in  New  York,  The  World,  owned  by  Mr.  Joseph  Pulitzer. 
It  Js  idle  to  say  that  the  known  character  of  Mr.  Pulitzer  and 
his  newspaper  are  such  that  the  statements  in  that  paper  will 
be  .believed  by  nobody.  Unfortunately  thousands  of  persons 
are  ill-informed  in  this  respect  and  believe  the  statements  they 
see  In  print,  even  though  they  appear  in  a  newspaper  published 
by  Mr.  Pulitzer.  *  *  * 

These  stories  *  *  *  need  no  investigation  whatever;  *  *  * 
they  are  in  fact  wholly  and  in  form  partly  a  libel  upon  the 
United  States  Government.  *  The  real  offender  is 

Mr.  Joseph  Pulitzer,  editor  and  proprietor  of  The  World 
While  the  criminal  offense  of  which  Mr.  Pulitzer  has  (been 
guilty  is  in  form  a  libel  upon  individuals,  the  great  injury 
done  is  in  blackening  the  good  name  of  the  American  people, 
t  should  not  be  left  to  a  private  citizen  to  sue  Mr.  Pulitzer  for 
nbel.  He  should  be  prosecuted  for  libel  by  the  govern 
mental  authorities. 

In  point  of  encouragement  of  iniquity,  in  point  of  infamy 
of  wrongdoing,  there  is  nothing  to  choose  between  a  public 
servant  who  betrays  his  trust,  a  public  servant  who  is  guilty 
of  WackmaH  or  theft  or  public  dishonesty  of  any  'kind  and  a 
man  guilty  as  Mr  Pulitzer  has  been  guilty  in  this  instance.  It 
is  therefore  a  high  national  duty  to  bring  to  justice  this  vilifier 


10 

of  the  American  people,  this  man  who  wantonly  and  wickedly 
and  without  one  shadow  of  justification  seeks  to  'blacken  the 
character  of  reputable  iprivate  citizens  and  to  convict  the  Gov 
ernment  of  ihis  own  country  in  the  eyes  of  the  civilized  world 
of  wrongdoing  of  the  (basest  and  foulest  kind,  when  he  has  not 
one  shadow  of  justification  of  any  sort  or  description  for  the 
charges  he  has  made.  The  Attorney-General  has  under  con 
sideration  the  form  In  which  the  proceedings  against  Mr. 
Pulitzer  shall  (be  brought. 

Attorney -General    Bonaparte    Started   Criminal  Pro 
ceedings. 

Under  orders  from  Mr.  Roosevelt,  Attorney-General 
Bonaparte  instituted  criminal  proceedings  in  the  courts 
of  the  District  of  Columbia  against  both  The  World 
and  the  Indianapolis  News,  and  on  Feb.  17,  1909,  the 
Grand  Jury  of  the  District  of  Columbia  returned  an 
indictment  against  The  Press  Publishing  Company,  pro 
prietor  and  publisher  of  The  World;  Joseph  Pulitzer, 
the  President  of  the  company,  and  Caleb  M.  Van 
ITamm  and  Robert  H.  Lyinan,  two  of  the  news  editors 
of  The  World,  based  on  the  circulation  within  the  Dis 
trict  of  Columbia  of  copies  of  The  World  containing 
the  news  articles  and  the  editorial  above  referred  to, 
and  a  further  indictment  against  Delavan  Smith  and 
Charles  R.  Williams,  the  owners  and  proprietors  of  the 
Indianapolis  News,  based  on  the  circulation  in  the  Dis 
trict  of  Columbia  of  copies  of  the  News  which  reflected, 
ns  charged,  upon  ex-President  Roosevelt,  President 
Taft,  Charles  P.  Taft,  Douglas  Robinson,  ex-Secretary 
of  State  Elihu  Root,  William  Nelson  Cromwell  and  J. 
P.  Morgan,  alleged  to  have  been  libelled  by  The  World. 

Government  Completely  Defeated  in  Indianapolis. 

The  Government  was  completely  defeated  in  the  In 
dianapolis  News  case.  United  States  Attorney  Kealing 
of  Indianapolis,  a  Roosevelt  appointee,  resigned  his 
position  rather  than  assist  in  the  attempt  to  remove  the 
defendants  from  their  homes  to  the  District  of  Colum 
bia  for  trial.  In  his  letter  of  resignation  to  the  Attor 
ney-General  of  the  United  States  he  said : 

For  almost  eight  years  I  have  had  the  honor  of  representing 
the  Government  as  United  States  Attorney.  During  that  time 
I  have  prosecuted  all  alike,  without  fear  or  favor,  where  I  (had 
honest  (belief  in  their  guilt.  I  have  been  compelled  on  several 
occasions  to  prosecute  personal  friends,  but  In  each  case  T  only 


16 

did  so  after  a  thorough  investigation  had  convinced  me  of 
tnelr  guilt.  In  this  case  I  have  made  a  careful  Investigation 
of  the  law  applicable  thereto.  As  to  the  guilt  or  Innocence  of 
the  defendants  on  the  question  of  libel  I  do  not  pretend  to  say. 
If  guilty  they  should  be  prosecuted,  but  properly  indicted  and 
prosecuted  in  the  right  place,  viz.,  in  their  koines, 
with  the  question  of  removal  that  I  have  to  do. 

I  am  not  in  accord  with  the  Government  in  its  attempt 
to  put  a  strained  construction  on  the  law;  to  drag  these 
defendants  from  their  homes  to  the  seat  of  the  Government, 
to  be  tried  and  punished,  while  there  is  good  and  sufficient 
law  in  this  jurisdiction  in  the  State  court.  I  believe  the 
principle  involved  is  dangerous,  striking  at  the  very  founda 
tion  of  our  form  of  government.  I  cannot  therefore  honest 
ly  and  conscientiously  insist  to  the  Court  that  such  is  the  law, 
or  that  such  construction  should  ibe  iput  on  it.  Not  being  able 
to  do  this,  I  do  not  feel  that  I  >can,  in  justice  to  my  office,  con 
tinue  to  hold  it,  and  decline  to  assist. 

Judge  Anderson's  Illuminating  Opinion. 

United  States  District  Judge  Anderson  decided  against 
the  contention  of  the  Government,  and  in  discharging 
Messrs,  Smith  and  Williams  from  custody  said: 

It  was  well  stated  by  a  former  President  of  the  United 
States  that  it  is  the  duty  of  a  newspaper  to  print  the  news 
and  tell  the  truth  about  it.  It  is  the  duty  of  a  public  news 
paper,  »uch  as  is  owned  and  conducted  by  these  defendants,  to 
tell  tne  people,  its  subscribers,  its  readers,  the  facts  that  it 
may  find  out  about  puiblic  questions,  or  matters  of  public  in 
terest;  It  is  its  duty  and  its  right  to  draw  inferences  'from  the 
facts  koown — draw  them  for  the  people.  *  * 

(Here  was  a  great  public  question.  There  are  (many  very 
peculiar  circumstances  about  the  history  of  this  Panama  Canal 
or  Panama  Canal  business.  I  do  not  wish  to  be  understood  as 
reflecting  upon  anybody,  in  office  or  out,  in  connection  with 
this  matter,  except  such  persons  as  I  may  name  in  that  way. 
The  circumstances  surrounding  the  revolution  in  Panama  were 
unusual  and  peculiar.  The  'people  were  interested  in  the  con 
struction  of  a  canal;  it  was  a  matter  of  great  public  concern, 
it  was  much  discussed.  A  large  portion  of  the  people  favored 
the  Nicaragua  route.  Another  portion  of  those  who  were  inter 
ested  In  it,  officially  or  personally,  preferred  the  Panama  route. 
A  committee  was  appointed  to  investigate  the  relative  merits 
of  the  two  routes.  They  investigated  and  reported  in  favor  of 
the  Nicaragua  route.  Shortly  afterward— I  do  not  recall  just 
how  soon  afterward — they  changed  to  the  Panama  route.  Up 
to  the  time  of  that  change,  as  1  gathered  from  the  evidence, 
the  lowest  sum  that  had  been  suggested  at  'Wihich  the  property 
of  the  Panama  Canal  'Company  could  be  .procured  was  some 
thing  over  $100,000,000.  Then,  rather  suddenly,  it  became 
known  that  it  could  be  (procured  for  $40,000,000.  There  were  a 
number  of  people  who  thought  there  was  something  not  just 
exactly  right  about  that  transaction,  and  I  will  say  for  myself 
that  I  ihave  a  curiosity  to  know  what  the  real  truth  was. 

Thereupon  a  committee  of  the  United  -States  Senate  was 
appointed  to  investigate  these  matters — about  'the  only  way  the 


17 

matter  could  be  investigated.  The  committee  met.  As  stated 
in  these  articles,  the  man  who  knew  all  about  it— I  think  that 
in  the  proper  way  to  speak  of  Mr.  Cromwell — who  knew  all 
about  It,  was  called  (before  the  •committee.  Mr.  Cromwell  upon 
certain  questions  being  put  to  him,  more  or  less  pertinent, 
stood  upon  his  privilege  as  an  attorney  and  refused  to  an 
swer.  '*  *  *  Mr.  'Cromwell  stood  upon  'his  privilege  when 
ever  questions  were  asked  the  answers  to  which  would  or 
might  reflect  upon  him  and  'his  associates.  But  whenever  a 
question  was  asked  which  gave  ihim  an  opportunity  to  say 
something  in  their  'behalf  he  ostentatiously  thanked  the  ex 
aminer  for  the  question  iand  proceeded  to  answer.  To  my  inind 
that  gave  just  ground  for  suspicion.  I  am  suspicious  about  it 
now.  *  *  *  Now  *  *  *  the  question  is:  Did  these  defendants 
under  the  circumstances  act  honestly  in  the  discharge  of  this 
duty,  of  which  I  have  spoken  and  which  the  law  recognizes,  or 
were  they  prompted  by  a  desire  to  injure  the  person  who  is 
affected  by  their  acts?  If  it  were  necessary  to  decide  this  case 
upon  the  question  of  privilege,  the  lack  of  malice,  I  would  hesi 
tate  quite  a  while  before  I  would  conclude  that  it  was  my  duty 
to  send  these  people  to  Washington  for  trial. 

But  that  is  not  all.  This  indictment  charges  these  defend 
ants  with  the  commission  of  a  crime  in  the  District  of  Colum 
bia.  The  Sixth  Amendment  to  the  Constitution  of  the  United 
States  provides:  In  all  criminal  prosecutions  the  accused  sihall 
enjoy  the  right  'to  a  speedy  and  -public  trial  by  an  impartial 
jury  of  the  State  or  district  wherein  the  crime  shalil  have  been 
committed,  which  district  shall  have  'been  previously  ascer 
tained  'by  law.  *  *  * 

To  my  mind  that  man  has  read  the  history  of  our  institu 
tions  to  little  purpose  who  does  not  look  with  grave  appre 
hension  upon  the  possibility  of  the  success  of  a  proceeding 
such  as  this.  If  the  history  of  liberty  means  anything — if 
constitutional  guarantees  are  worth  anything — this  pro 
ceeding  must  fail.  If  the  prosecuting  authorities  have  the 
authority  to  select  the  tribunal;  if  there  foe  more  than  one 
tribunal  to  select  from;  if  the  Government  has  the  'power  and 
can  drag  citizens  from  distant  States  to  the  capital  of  the 
nation,  there  to  'be  tried,  then,  as  Judge  Cooley  says,  this  is  a 
strange  result  of  a  revolution  where  one  of  the  grievances  com 
plained  of  was  the  assertion  of  the  right  to  send  parties 
abroad  for  trial. 


Another  Attempt  Made  to  Stretch  the 

In  f.iie  face  of  this  decision  there  was  no  attempt  by 
the  Government  to  remove  Mr.  Pulitzer,  Mr.  Van 
!  hi  n nn  and  Mr.  Lyman  from  the  l^ew  York  jurisdiction 
m  fho  District  of  Columbia  on  the  indictment  pending 
against  them  in  that  district;  but  to  please  Mr.  Koose- 
velt  another  attempt  had  been  made  to  stretch  the  lav, 
so  as  to  permit  the  prosecution  of  The  World  before 
the  Federal  courts  without  again  raising  the  question 
of  removal. 


IS 

Under  instructions  from.  President  iloosevelt,  United 
States  Attorney  Henry  L.  Stirnson,  wlio  was  Mr.  Roose 
velt's  candidate  for  Governor  of  the  State  of  ISTew  York 
at  the  recent  State  election,  had  also  obtained  further 
separate  indictments  for  criminal  libel  from  the  Federal 
Grand  Jury  in  the  Southern  District  of  New  York 
against  The  Press  Publishing  Company  (the  corporation 
which  publishes  The  World)  and  against  Mr.  Van 
jHaram,  charging  the  circulation  of  twenty-nine  copies 
of  each  of  the  issues  complained  of  at  and  within  "the 
fort  and  military  post  and  reservation  of  West  Point" 
and  at  and  within  "the  tract  of  land  in  the  borough  of 
Manhattan,  in  the  city  of  New  York/7  whereon  stands 
"a  needful  building  used  by  the  United  States  as  a  Post- 
Office,"  both  being  "places  which  had  been  ceded  by  the 
State  of  New  York  to  the  United  States." 
/  This  indictment,  couched  in  the  very  language  of  the  no- 
1  torious  Alien  and  Sedition  acts,  expressly  charged  that  it 
was  the  purpose  of  The  World  to  "stir  up  disorder 
among  the  people"  (the  language  of  the  Sedition  act  was 
"to  stir  up  sedition  among  the  people").  In  substance 
and  in  fact  it  was  an  indictment  for  the  publication  of 
what  in  1798  would  have  been  alleged  in  terms  to  con 
stitute  a  seditious  libel,  tending  to  stir  up  discontent 
and  flisaffections  and  to  bring  the  Government  into  con 
tempt. 

The  act  on  which  the  Government  relied  as  authority 
for  this  unprecedented  prosecution  was  that  of  July  7, 
1898,  entitled  "An  act  to  Protect  the  Harbor  Defenses 
and  "Fortifications  Constructed  or  Used  by  the  United 
States  from  Malicious  Injury,  and  for  Other  Purposes." 
It  was  founded  on  the  act  of  March  3,  1825,  which  was 
tho  first  Federal  enactment  of  this  character.  Eighty- 
five  years  had  passed  since  Judge  Story  conceived  this 
statute  and  since  Congress  made  it  a  part  of  the  laws  of 
the  United  States.  It  had  never  before  been  invoked  by 
theFederal  authorities  as  giving  them  the  right  to  punish  libel  . 
It  was  further  assorted  by  United  States  At  tome  y 
Stimson  in  a  letter  to  Mr.  Jerome  that: 


publications  *  *  *  appear  to  have  been  circulated 
by  the  newspaper  in  question  fn  a  number  of  distinct  and 
independent  jurisdictions  and  to  contain  charges  reflecting 
on  the  persona]  character  of  a  number  of  men,  of  whom  some 


id 

arc  In  public  life  and  some  are  private  citizens.  In  each  of 
these  jurisdictions,  under  well  known  principles  of  law,  each 
of  these  publications  would  constitute  a  separate  offense,  and, 
as  it  happens  in  this  case,  each  one  is  characterized  by  distinct 
ansl  peculiar  features. 

Sweeping  Scope  of  Government  Claim. 

Ag  there  are  no  fewer  than  2,809  Government  reser 
vations  corresponding  to  West  Point  and  the  Post-Office 
building,  a  newspaper  of  large  circulation  under  this  Roose- 
v  eh  Ian  theory  of  law  might  be  prosecuted  from  one  end  of 
the  country  to  the  othsr  by  th*  Federal  authorities  for  an 
article  that  was  neither  written  nor  printed  on.  any  of 
these  reservations,  but  happened  to  reach  them  in  the 
ordinary  course  of  circulation. 

At  the  suggestion  of  counsel  for  The  World  courr, 
orders  for  the  issuance  of  letters  rogatory  for  the  exam 
ination  of  witnesses  were  addressed  through  the  usual 
diplomatic  channels  to  the  proper  judicial  authorities 
of  the  French  and  Panaman  Governments. 

In  order  to  obtain  the  Government's  consent  to  this 
procedure  it  was  necessary  for  The  World  to  pay  the 
expenses  of  United  States  Attorney  WTise  and  Deputy 
Attorney-General  Stuart  McXamaru  to  Paris  and  of 
Mr.  Knapp  of  the  United  States  Attorney's  office  to 
Panama,  as  the  Government  refused  to  assume  any  part 
of  the  cost  of  procuring  the  evidence  needed. 

The  letters  rogatory  having  been  issued,  the  State 
Department  in  Washington  notified  De  Lancey  Nroll, 
The  World's  counsel  in  !NTew  York,  that  the  American 
Ambassador  to  France  had  been  instructed  to  assist 
Coudert  Bros.,  The  World's  counsel  in  Paris,  in  obtain 
ing  the  authorization  of  the  Minister  of  Justice  in  order 
that  the  examination  of  witnesses  could  begin  about 
July  12,  1909.  On  July  18  Mr.  Wise  wrote  to  Mr.  Do 
Lancey  ^Ticoll  that  he  had  received  a  letter  from  the 
Attorney-General  "in  which  he  informs  me  that  he  has 
made  request  for  instructions  to  the  American  Ambas 
sador  at  Paris  to  facilitate  you  in  all  ways  to  a  full  and 
thorough  access  to  the  papers  of  the  old  and  new  Pan 
ama  Canal  companies." 

Mr.  Wise  also  informed  John  D.  Lindsay,  Mr.  .Nicoll'.s 
law  partner,  that  if  a  personal  note  from  Mr.  Taft  to 


90 

the  President  of  the  French  Republic  was  necessary 
to  secure  evidence  in  the  matter  contemplated  he  WOT 
obtain  such  a  letter. 

Efforts  to  Get  at  Facts  Impeded. 

This  looked  very  promising,  and  it  seemed  certain 
that  the  American  people  would  finally  know  "Who 
Got  the  Money."  But  on  June  21  Mr.  Mcoll  received 
the  following  cable  from  Coudert  Bros. :  "Government 
interfering.  Wants  know  nature  of  case,  names,  wit 
nesses,  list  of  questions."  Mr.  tficoll  at  once  took  the 
matter  up  with  the  Attorney-General  and  with^  the 
State  Department,  but  the  French  authorities  insisted 
that  the  rogatory  letters  could  not  be  issued,  and  in  a 
letter  written  to  Mr.  Lindsay  July  13  Mr.  Wise  said 
the  American  Ambassador  had  been  informed  by  the 
"French  Foreign  Office  "that  no  such  examination  as  was 
contemplated  by  us  can  be  had."  Mr.  Wise  added: 

As  you  know,  I  have  foeen  in  Paris  for  the  past  week,  during 
which  time  I  ihave  known  of  the  before-mentioned  difficulties, 
and  heing  desirous  of  affording  your  client  every  opportunity 
to  have  a  full  and  fair  opportunity  to  conduct  its  examination, 
I  have  arranged  with  the  American  Ambassador  to  permit  the 
use  of  the  rooms  at  the  embassy  for  the  examination  of  such 
witnesses  as  you  may  desire  to  calil;  he  has  also  agreed  that  if 
you  and  I  join  in  a  written  request  to  him  to  invite  such  wit 
nesses  to  come  to  the  embassy  to  Ibe  examined  <he  will  imme 
diately  communicate  with  the  Secretary  of  State  of  the  United 
States  '.for  his  approval  of  such  course,  and  upon  receiving  such 
approval,  if  the  French  Government  does  not  oibject,  'he  will 
invite  them.  I  am  reliably  informed  that  the  French  Govern 
ment  will  make  no  objection,  and  I  am  sure  the  Secretary  of 
State  will  give  his  approval. 

This  simply  meant  that  such  witnesses  as  might 
choose  to  come  would  give  such  testimony  as  they  saw 
fit,  and  that  there  could  be  no  thorough  examination, 
such  as  the  case  demanded.  However,  there  was  noth 
ing  to  do  but  to  make  the  best  of  the  situation.  So  on 
July  15  Mr.  Lindsay  wrote  to  Mr.  Wise  asking  him  to 
make  arrangements  "so  that  I  can  see  to-morrow,  if 
possible,  at  any  time  suitable  to  your  convenience,  the 
records  of  the  two  companies." 

In  his  reply  Mr.  Wise  said: 

*    You  seem  to  assume  that  I  have  a  power  of  control 
over  the  affairs  of  these  two  companies,  and  that  it  is  only 
necessary  for  me  to  signify  my  desire  that  the  records  of  these 
I 


companies  should  be  examined  and  the  wish  would  be  grati 
fied.  *  *  *  You  are  greatly  in  error.  *  *  *  First 
*  *  *  the  new  Panama  Canal  Company  Avas  a  going  cor 
poration  at  the  time  when  it  sold  its  properties  to  the  United 
States,  and  under  the  French  law,  which,  is  quite  similar  to 
that  of  the  State  of  New  York,  the  corporation  having  no  fur 
ther  'function  to  perform  went  out  of  existence  by  its  Board  of 
Directors  assuming  the  functions  of  a  Board  of  Trustees  for 
the  distribution  oif  its  assets,  and  this  having  been  fully  per 
formed,  *  *  *  the  Board  of  Trustees  *  *  deposited 
all  of  the  'books  of  the  company  with  a  depository,  whidh  in 
this  case  happened  to  be  the  Credit  Lyonnais,  where  under  the 
laws  of  France  such  books  must  remain  for  a  period  of  twenty 
years.  This  having  been  done,  the  Board  of  Directors  or  the 
Board  of  Trustees  have  no  further  control  over  these  books 
and  cannot  (have  access  thereto.  I  know  of  no  way  by  which 
it  will  be  possible  .for  me  to  arrange  'for  you  to  see  the  records 
of  these  companies.  I  do  not  ibelieve  you  would  be  able  to 
examine  these  records  through  any  court  'proceeding.  I  have 
consulted  with  eminent  French  counsel  on  this  subject,  and 
am  informed  that  no  court  in  France  could  make  any  order 
compelling  the  Credit  Lyonnais  or  its  officers  to  submit  the 
papers  to  our  examination. 


The  World  Prepared  to  Claim  Justification. 

Although  thwarted  in  its  attempt  to  get  access  to  the 
records  of  the  canal  companies,  which  under  the  terms 
of  the  agreement  of  sale  belong  by  right  to  the  United 
States  Government  and  ought  to  be  in  Washington, 
The  World  pursued  its  investigations  and  collected 
much  valuable  evidence  in  Paris  and  in  Panama.  A 
staff  correspondent  was  sent  to  Bogota  and  by  the  cour 
tesy  of  the  Colombian  Government  was  given  certified 
copies  of  original  records  bearing  upon  the  case  and 
other  documentary  evidence  of  great  value. 

When  the  case  came  up  for  trial  in  the  United  States 
District  Court  in  New  York  City,  on  Jan.  25,  1910,  before 
Judge  Charles  M.  Hough,  The  World  was  fully  prepared 
to  submit  to  the  jury  evidence  to  sustain  the  defense  of 
justification  which  would  have  been  entered  had  the  case 
gone  to  trial  on  its  merits.  But  the  form  in  which  the 
prosecution  was  brought  forced  upon  The  World  responsi 
bilities  which  could  not  be  disregarded. 

After  stating  to  the  Court  that  quite  apart  from  the 
legal  questions  involved  he  proposed  to  interpose  the 
defense  of  justification,  De  Lancey  Nicoll,  counsel  for 
The  World,  moved  that  the  Court  quash  the  indict- 


22 

ment,  dismiss  the  proceedings,  or  instruct  the  jury  to 
acquit  the  defendant  upon  the  following  grounds: 

1.  The  court  has  no  jurisdiction  in  this  case.    There  is  no 
statute  of  the  United  States  authorizing  this  prosecution. 

2.  The  act  at  1898  does  not  apply  to  the  case,  as  disclosed 
by  the  evidence.  " 

3.  If  the  act  of  1898  is  so  construed  as  to  cover  the  acts 
shown  by  the  evidence  it  is  unconstitutional. 

4.  The   offense,   if  any,   was   committed   wholly   within   the 
jurisdiction  of  the  State  of  New  York,  and  -was  .punishable 
there. 

5.  The  defendant,  being  a  corporation,  is  incapaible  of  com 
mitting  the  offense  charged  in  the  indictment. 

But  for  the  menace  to  the  freedom  of  the  press  pre 
sented  by  Mr.  Eoosevelt's  unprecedented  prosecution, 
and  but  for  the  question  of  constitutional  liberty  in  its 
relation  to  freedom  of  speech  and  of  the  press  involved, 
The  World  would  very  much  have  preferred  to  let  the 
case  go  to  trial  on  its  merits  and  present  the  evidence  in 
its  possession  to  a  jury. 

This  could  not  be  done,  however,  without  conceding  the 
existence  of  a  Federal  libel  law,  thereby  placing  the  press 
of  the  entire  country  at  the  mercy  of  the  President  of  the 
United  States  or  of  the  party  in  power.  While  in  some 
future  case  that  might  arise  the  great  constitutional  issue 
raised  by  The  World  would  undoubtedly  have  been  settled 
by  the  courts,  yet  smaller  and  weaker  newspapers,  unable 
to  match  their  resources  against  the  limitless  power  of  the 
United  States  Governemnt,  might  have  been  bankrupted 
and  ruined  in  defending  their  rights. 

The  World's  Fight  Was  for  Press  of  Whole  Country. 

The  World,  therefore,  not  merely  in  its  own  interest 
but  in  the  interest  of  the  freedom  of  the  press  and  in 
order  to  safeguard  the  public's  right  to  a  full,  free  and 
untrammelled  discussion  of  all  national  and  political 
questions,  felt  obliged  to  resist  to  the  utmost  every  pre 
tense  on  the  part  of  the  Federal  authorities  that  there 
was  a  Federal  libel  law,  that  Federal  authorities  had  a 
co-ordinate  jurisdiction  with  the  State  authorities  in 
prosecuting  alleged  libel  if  it  could  be  shown  that  the 
paper  or  periodical  which  had  offended  the  Government 
happened  in  the  ordinary  course  of  its  circulation  to 
reach  any  one  of  the  2,809  Government  reservation*. 


So  Mr.  Me  oil  contended  that  tke  libels  with  which 
The  World  was  charged — even  if  they  were  libels — were 
cognizable  in  the  State  courts  and  could  have  been  pun 
ished  there,  but  that  there  was  no  Federal  libel  law, 
and  whatever  the  language  of  the  Act  to  Protect  Har- 
borDefenses  and  Fortifications,  tfie  whole  history  of 
theTaTv  of  libel  in  the  United  States,  the  history  of  the 
statute  and  the  history  of  the  passage  of  the  act  of  1825 
through  Congress  all  plainly  showed  that  Congress  did 
not  intend  and  the  law  did  not  authorize  any  such  pur 
pose  as  claimed  by  the  Government. 

On  behalf  of  the  Government,  United  States  Attorney 
AVise  argued  that  tho  act  under  which  the  indictment 
was  being  pressed  could  be  construed  as  a  Federal  libel' 
law.  He  contended  that  newspapers  were  subject  to 
prosecution  for  libel  in  the  Federal  courts  as  well  as  in 
the  State  courts,  with  the  result  that  the  President  of  the 
United  States  could  instigate  criminal  proceedings  against  a 
newspaper  in  any  or  all  of  the  2,809  Federal  jurisdictions  in 
which  it  might  happen  to  circulate,  and  that  a  conviction  in 
any  one  of  these  jurisdictions  would  not  be  a  bar  to  further 
convictions  in  others  and  to  further  convictions — should 
such  be  obtainable — in  each  and  every  State  of  the  Union. 

Judge  Hough  Quashed  the   Indictment. 

Judge  Hough  refused  to  accept  this  view.  In  his  judg 
ment  quashing  the  indictment  he  said: 

The  Court  is  relieved  of  much  embarrassment  by  the  form 
of  one  of  the  motions  made.  The  jurisdiction  of  this  court  is 
peremptorily  challenged  by  the  motion  to  quash.  Other  mo 
tions  have  been  made  which  will  not  be  considered.  But  inas 
much  as  a  decision  under  a  motion  to  quash  is  now  speedily 
reviewable  by  the  highest  court,  I  shall  dispose  of  the  case 
under  that  motion.  *  *  *  It  seems  to  me  that  there  is  a 
plain  distinction  between  that  jurisdiction  which  grows  out  of 
the  necessary  exercise  of  national  powers  and  that  which  is  > 
based  on  the  physical  ownership  of  areas  of  land.  The  first 
basis  or  foundation  of  jurisdiction  is  governmental  and  funda 
mentally  governmental.  The  existence  and  exercise  of  that 
species  of  jurisdiction  is  vital  to  the  National  Government,  tout 
territorial  jurisdiction  is  merely  a  convenience.  It  is  fre 
quently  a  very  great  convenience,  (but  it  is  no  more  than  that. 

The  criminal  statutes  passed  in  the  exercise  of  Congressional 
authority  have  always,  as  far  as  they  have  come  under  my 
observation,  seemed  to  me  to  view  offenses  and  offenders  from 
one  or  two  standpoints.  The  proscribed  act  is  made  an  offense 
or  crime  'because  it  either  lessens  the  authority  or  attack*  the 
«>T«reignty,  or  interferes  with  the  operation  of  or  Injures  th« 


24: 

property  of  the  United  States,  or  else  it  is  an  offense  against 
general  municipal  law  wihich  happens  to  ibe  committed  upon  a 
place  within  the  exclusive  jurisdiction  of  the  nation.  Now,  it, 
may  he,  it  has  in  the  past  been  thought,  that  under  some  cir 
cumstances  the  'Crime  of  libel  might  be  considered  to  impair 
the  authority  and  interfere  with  the  efficiency  of  the  .Govern 
ment  of  the  United  States,  but  so  .far  as  I  know  or  am  informed 
by  counsel,  this  thought  has  not  found  expression  in  any  na 
tional  statute  now  in  force.  Therefore  in  this  court  the  crime 
\  charged  in  this  indictment  is  to  be  regarded  only  as  an  offense 
t  against  the  United  States,  if  it  is  an  offense  against  the  law  of 
New  York,  which  happened  to  ibe  committed  upon  national  Hand 
physically  within  the  Southern  District  of  New  York  ' 
The  question  is  this:  Tihe  libellous  matter  here  complained  of 
was  printed  and  published  in  the  county  of  New  York.  There- 
lore  the  State  court  sitting  in  that  county  ihas  jurisdiction.  It 
was  also  published  in  the  county  of  Orange;  therefore  the 
State  court  .sitting  in  that  county  has  jurisdiction.  But  it  was 
also  published  in  the  West  Point  reservation,  whicih  is  both  in 
\  the  county  of  Orange  and  in  the  Southern  District  of  New 
York,  and  therefore  this  court  has  jurisdiction.  To  the  propo 
sition  that  this  can  foe  true  I  am  unwilling  to  yield  assent 
until  instructed  by  higher  authority.  *  * 

I  am  of  the  opinion  that  the  construction  of  this  act  cilaimed 
by  the  prosecution  is  opposed  to  the  spirit  and  tenor  of  legis 
lation  for  many  years  on  the  subject  of  national  territorial 
jurisdiction.  It  is  a  novelty,  and  the  burden  of  upholding  a 
novelty  is  upon  him  who  alleges  it.  *  *  *  It  is  therefore 
ordered  that  a  judgment  of  this  Court  be  entered  quashing  the 
indictment  herein,  because  upon  the  construction  of  the  stat 
ute,  hereinbefore  stated,  the  indictment  is  not  authorized  by 
the  statute  on  which  it  rests. 

On  the  day  following  Judge  Hough's  decision  The 
World  printed  an  editorial  in  which  it  said : 

If  there  exists  in  Washington  the  shadow  of  a  suspicion  that 
a  Federal  libel  law  can  be  created  by  construction  or  inter 
pretation—if  there  still  remains  the  likelihood  that  some  day 
another  Roosevelt  will  prostitute  his  power  by  invoking  the 
act  to  protect  'harbor  defenses  in  order  to  prosecute  newspapers 
that  have  offended  him— if  there  be  the  ghost  of  a  belief  that 
the  Federal  Government  has  co-ordinate  power  with  State 
governments  in  the  prosecution  of  alleged  libel,  and  that  every 
American  newspaper  is  at  the  mercy  of  the  President— then 
the  sooner  there  is  a  final  decision  of  the  Supreme  Court  of 
the  United  States  the  ibetter. 

Newspapers  Everywhere  Congratulated  The  World. 

.Newspapers  of  every  shade  of  political  opinion  in 
every  State  of  the  Union  congratulated  The  World  upon 
its  signal  victory  and  joined  with  this  paper  in  urging 
President  Taft  to  appeal  the  case  to  the  Supreme  Court. 
Said  The  World  on  Jan.  31,  1910: 

As  the  Panama  case  now  stands  there  is  nothing  to  prevent 
a  future  Roosevelt  from  making  another  assault  upon  the  free- 


25 

dom  of  the  press  in  order  to  gratify  his  own  personal  'malice. 
He  can  pretend  that  the  United  States  Government  or  some 
official  of  the  United  States  Government  has  been  libelled. 
He  can  select  the  alleged  offender,  declare  that  "he  should  be 
prosecuted  for  libel  by  the  governmental  authorities"  and  order 
a  subservient  Attorney-General  to  institute  criminal  -proceed-, 
ings  in  the  name  of  the  people  of  the  United  States.  *  *  * 

Freedom  of  speech  and  of  the  press  is  not  a  favor  to  be  exer 
cised  at  the  pleasure  of  a  President.  The  immunity  of  news 
papers  from  wholesale  Federal  prosecution,  with  the  attend 
ant  possibility  of  bankruptcy  and  ruin,  is  either  a  matter  of 
law  or  it  is  nothing.  The  press  is  not  free  if  it  is  to  be  free 
only  on  condition  that  a  President  refrains  from  abusing  his 
power  and  prostituting  his  authority. 

The  Federal  Government,  through  its  officers,  having  claimed 
the  right  to  iprosecute  newspapers  for  criminal  lilbel  under  the 
provisions  of  tihe  act  to  protect  harbor  defenses,  is  morally 
obligated  to  either  make  that  claim  good  in  the  court  of  last 
resort  or  to  establish  beyond  quibble  or  cavil  the  coustitu- 
tional  irregularity  of  the  whole  proceeding.  It  has  no  right 
to  leave  the  issue  in  doubt.  It  has  no  right  to  leave  22,000 
newspapers  and  periodicals  uncertain  as  to  their  responsibility 
under  the  law.  Mr.  Taft  and  ]\lr.  Wickersham  may  both  agree 
with  Judge  iHo'ugh's  decision.  The  World  assumes  that  they 
do.  But  Mr.  Taft  will  not  always  be  President  of  the  United 
States  and  Mr.  Wickersham  will  not  always  be  Attorney-Gen 
eral  of  the  United  States.  Their  opinions  bind  none  of  their 
successors. 

The  .power  to  determine  great  constitutional  questions  rests 
with  the  Supreme  Court  of  the-  United  States.  In  this  depart 
ment  of  government  it  alone  can  speak  with  full  authority,  and 
in  dealing  with  a  revolutionary  issue  that  involves  public  free 
dom  and  public  liberty  nothing  is  to  be  taken  for  granted, 
nothing  is  to  foe  left  to  chance,  nothing  is  to  be  left  to  the 
whim  or  pleasure  of  a  President  or  of  a  political  party  in 
power. 

On  Feb.  26,  1910,  the  Government  filed  a  writ  of 
error,  and  the  appeal  came  before  the  Supreme  Court 
of  the  United  States  on  Monday,  Oct.  24,  1910.  It  was 
heard  by  Mr.  Justice  Harlan,  Mr.  Justice  White  (now 
Chief  Justice  of  the  United  States),  Mr.  Justice  Day, 
Mr.  Justice  Holmes,  Mr.  Justice  McKenna,  Mr.  Justice 
Lurton  and  Mr.  Justice  Hughes.  The  unanimous  deci 
sion  of  the  Court  in  favor  of  The  World  was  handed 
down  on  Jan-JL  19-11.  bv  Mr.  Chief  Justice  White. 

Dismissal  of  the  Washington  Indictments. 

There  still  remained  in  force  the  indictments  handed 
up  Feb.  17,  1909,  in  the  Supreme  Court  of  the  District 
of  Columbia  under  the  direction  of  Attorney-General 
Bonaparte  acting  on  the  direct  orders  of  President 


26 

V 

Roosevelt.    Xo  attempt  had  ever  been  made  to  serve 

warrants  on  Mr.  Pulitzer  or  the  two  news  editors  of 
The  World,  although  word  had  been  formally  sent  to 
the  United  States  Attorney  for  the  Southern  District 
of  New  York  that  each  held  himself  subject  to  the 
latter's  call  whenever  he  wished  to  push  the  matter. 
The  effort  made  before  Federal  Judge  Anderson  in 
Indianapolis  in  October,  1909,  to  drag  Delevan  Smith 
and  Charles  R.  Williams  to  Washington  for  trial  had 
failed  utterly. 

In  due  course,  after  a  careful  consideration  of  all  the 
papers  in  the  case  in  the  Department  of  Justice,  United 
States  Attorney  Clarence  R.  Wilson,  acting  under  in 
structions  from  Attorney-General  Wickersham,  made 
a  formal  motion  on  March  31,  1911,  before  Justice 
Daniel  Thew  Wright  in  the  Supreme  Court  of  tlie  Dis 
trict  of  Columbia  for  the  dismissal  of  these  indictments. 

"It  is  so  ordered,"  said  the  Justice. 

"The  indictments  were  dismissed,"  said  the  District- 
Attorney  later,  "because  the  Attorney-General,  after 
considering  the  decision  of  the  United  States  Supreme 
Court  in  this  same  matter,  came  to  the  conclusion  that 
there  was  nothing  more  to  be  done  in  those  cases." 

The  effort  to  revive  the  spirit  of  the  Alien  and  Sedi 
tion  laws;  to  establish  the  doctrine  of  lese-majesty,  had 
come  tp  an  inglorious  end. 

The  decision  of  the  Supreme  Court  of  the  United 
States,  while  safeguarding  the  liberty  of  the  press  for 
all  time  against  the  encroachments  of  Federal  author 
ity,  and  more  than  justifying  the  great  effort  of  The 
World  in  a  cause  it  knew  to  be  just,  yet  leaves  unan 
swered  the  question:  "WTio  Got  the  Money?1' 


THE  ARGUMENT  ON  APPEAL 

BEFORE    THE 

UNITED  STATES  SUPREME  COURT 


Mr.  Roosevelt's  Panama  libel  suit  against  The  World 
came  before  the  Supreme  Court  of  the  United  States  at 
Washington  on  Oct.  21,  1910,  on  an  appeal  by  the  Gov 
ernment  from  the  decision  of  United  States  DisUic! 
Judge  Hough,  who  on  Jan.  26  had  quashed  for  lack  of 
jurisdiction  the  criminal  libel  indictment  returned  by  a 
Federal  Grand  Jury  an  New  York  against  The  Press 
Publishing  Company,  the  corporation  publishing  Ths 
World. 

Mr.  Justice  Harlaii  presided  over  the  court,  and  with 
•him  on  the  bench  sat  Mr.  Justice  White,  Mr.  Justice 
McKenna,  Mr.  Justice  Holmes,  Mr.  Justice  Day,  Mr. 
Justice  Lurton  and  Mr.  Justice  Hughes. 

The  United  States  as  plaintiff  in  error  was  represent 
ed  by  Mr.  James  C.  McReynolds,  Assistant  Attorney- 
General,  and  Mr.  Stuart  McNamara,  a  special  assistam 
to  the  Attorney-General,  and  Mr.  De  Lancey  ISTicoll  and 
Mr.  John  D.  Lindsay  of  the  law  firm  of  Nicoll,  Ami  Mo. 
Lindsay  &  Fuller  appeared  for  The  World. 

The  case  was  reached  at  3.45  P.  M.,  just  three-quar 
ters  of  an  hour  before  the  time  for  adjournment,  so 
briefs  were  filed,  and  by  consent  the  case  went  over 
until  Monday,  the  24th,  for  argument. 

The  Government's  Brief. 

The  Government's  brief  was  signed  by  Attorney-Gen 
eral  Wickersharn,  James  C.  McReynolds  and  Stuart  Mc- 
Namara.  It  first  recites  the  substance  of  the  indict 
ment  and  quoting  the  Federal  statutes  and  the  New 
York  libel  law. 

The  substantial  question  which  the  Government 
claims  is  before  the  Court  is  then  set  out  as  being 
whether  or  not  the  United  States  courts  have  jurisdic 
tion  to  punish  a  corporation  which  printed  in  the  city 
of  New  York  a  newspaper  containing  a  libel  criminal 
under  the  laws  of  the  State  of  Xew  York,  and  circu 
lated  copies  of  the  same  within  the  Federal  territory  of 
West  Point.  The  Government's  claim  is  based  on  an 


so 

act  of  Congress,  1898,  which  the  Government  urge* 
"operates  to  transfer  the  State  law  to  Federal  territory, 
for  the  purpose  of  punishing  acts  committed  there  which 
if  performed  outside  and  in  the  jurisdiction  of  the  State 
would  be  amenable  to  its  laws." 

In  the  Government's  brief  it  is  argued  that  it  is  not 
only  the  right  but  the  duty  of  Congress  so  to  legislate 
concerning  territory  under  its  exclusive  jurisdiction  as 
to  preserve  peace  and  good  order  therein.  "Because 
one  may  be  punished  for  issuing  a  libel  in  New  York 
is  no  reason/'  says  the  Government,  "for  allowing  him 
to  go  free  of  all  punishment  for  circulating  it  at  West 
Point.  The  people  in  the  latter  place  are  entitled  to 
protection." 

The  suggestion  that  the  offense  charged  could  be  pun 
ished  in  New  York  State  courts,  and  therefore  was  not 
intended  to  be  included  in  the  act  of  1898,  brought; 
forth  the  argument  from  the  Government  "that  the 
State  of  New  York  cannot  punish  an  offense  committed 
at  West  Point  against  the  United  States." 

Prief  for  The   World. 

The  brief  for  the  defendant,  The  Press  Publishing 
Company  (the  New  York  World,)  is  signed  by  De  Lan- 
cey  Nicoll,  John  D.  Lindsay  and  Raymond  D.  Thurber 
of  counsel.  It  recites  that  the  indictment  is  predicated 
upon  the  circulation  in  Federal  territory  of  six  alleged 
libellous  articles  which  appeared  in  The  World  in  its 
issues  of  Oct.  3,  4,  7,  14,  16  and  19,  1908.  Twelve  of 
the  fourteen  counts  charge  that  the  defendant,  "con 
triving  and  intending  to  injure"  Theodore 
Roosevelt,  then  President  of  the  United  States;  Doug 
las  Robinson,  his  brother-in-law;  William  Howard  Taft, 
Secretary  of  War  at  the  time  in  question;  Charles  P! 
Taft,  his  brother,  and  William  Nelson  Cromwell,  an 
attorney  at  law  practising  in  the  city  of  New  York,  to 
excite  them  to  breaches  of  the  peace/ "and  otherwise  to 
*tir  up  disorder  among  the  people,"  composed,  wrote, 
printed  and  published  the  alleged  libels  at  and  within 
the  "fort  and  military  reservation  of  West  Point,"  in 
the  Southern  District  of  New  York,  such  publication 
being  accomplished  by  delivering  "for  perusal  by  per- 


31 

sons  residing  at  the  said  military  post  and  reservation" 
twenty-nine  copies  of  each  of  the  issues  at  a  store  in 
West  Point  known  as  the  Post  Exchange.  Seven  counts 
charge  that  the  defendant  composed,  wrote,  printed  and 
published  the  alleged  libels  at  and  within  the  United 
States  Post-Office  Building,  in  the  borough  of  Manhat 
tan  of  the  city  of  New  York,  in  the  same  district,  and 
that  their  publication  was  accomplished  by  delivering 
onr  copy  of  each  issue  "to  one  Walter  S.  Mayer,  post- 
office  inspector  in  charge,  at  his  office  in  room  106  of 
the  said  Post-Office  Building." 

The  fourth  and  eleventh  counts  charge  that  the  arti 
cle  of  Oct.  7  was  published  in  like  manner,  but  that  if 
constituted  a  libel  on  Robinson,  Charles  P.  Taft  and 
Cromwell  only. 

The  articles  relate  to  certain  alleged  conduct  of  the 
individuals  above  named,  and  are  averred  to  have  been 
published  not  only  of  and  concerning  these  persons,  but 
also  of  and  concerning  the  "matter  of  the  acquisition 
and  purchase  by  the  Government  of  the 

United  States,  for  the  sum  of  $40,000,000  from  the 
Oompagnie  "N'ouvelle  du  Canal  de  Panama  of  his 
property  and  proprietary  rights  at  the  Isthmus  of  Pan 
ama,  preliminary  to  the  construction  by  the  Govern 
ment  of  the  United  States  of  the  Panama  Canal  across 
that  Isthmus." 

The   Statute  of  1898. 

The  indictment  is  founded  on  the  act  of  July  7,  1898, 
entitled  "An  Act  to  Protect  tho  Harbor  Defenses  and 
Fortifications  Constructed  or  Used  by  the  United  States 
from  Malicious  Injury,  and  for  Other  Purposes"  (30 
Stat.,  717).  It  reads  as  follows: 

"That  when  any  offense  is  committed  in  any  place,  juris 
diction  over  which  has  been  retained  by  the  United  States, 
or  ceded  to  it  >bv  a  State,  or  which  has  'been  purchased 
with  the  consent  of  a  State  for  the  erection  of  a  fort,  maga 
zine,  arsenal,  dockyard  or  other  needful  building  or  struc 
ture,  the  punishment  for  which  offense  is  not  provided  for 
by  any  law  of  the  United  States,  the  person  committing 
such  offense  shall,  upon  conviction  in  a  Circuit  or  District 
court  of  the  United  States  for  the  district  in  which  the 
offense  was  committed,  be  liable  :o  and  receive  the  same 
•punishment  as  the  laws  of  the  State  in  which  such  place 
is  situated  now  provide  for  the  like  offense  when  commit- 


32 

ted  within  the  jurisdiction  of  such  State,  and  the  said 
courts  are  hereby  vested  with  jurisdiction  for  such  pur 
pose;  and  no  subsequent  repeal  of  any  such  State  law  shall 
affect  any  such  prosecution." 

Pacts  Admitted  by  Both  Parties. 

At  the  trial  the  brief  quotes  from  the  record  that  it 
was  admitted  by  both  parties: 

"That  the  total  circulation  of  The  World  on  Oct.  3,  1908, 
was  376,320  copies,  of  which  number  316,456  copies  were 
circulated  in  the  city  otf  New  York,  and  not  upon  territory 
within  exclusive  jurisdiction  of  the  United  States,  the  re 
maining  59,870  copies  Ibeing  spread  throughout  the  United 
States;  that  on  Oct.  19,  1908,  the  total  circulation  of  The 
World  was  382,410  copies,  of  which  number  323,198  copies 
were  circulated  in  the  city  of  New  York,  and  not  upon  any 
territory  within  the  exclusive  jurisdiction  of  the  United 
States,  the  remaining  59,212  copies  being  spread  through 
out  the  United  States,  and  that  the  total  circulation  of  The 
World  on  the  other  dates  of  publication  mentioned  in  the 
indictment  was  about  380,000  copies,  of  which  upward  of 
320,000  were  circulated  in  the  city  of  New  York,  but  not 
within  Federal  territory,  the  remainder  being  spread 
throughout  the  United  States." 

As  it  thus  appeared  that  the  articles  were  printed  in 
the  defendant's  printing  office  in  the  city  of  New  York, 
within  the  jurisdiction  of  the  State  of  New  York,  and 
that  they  were  circulated  in  Federal  territory  in  "the 
regular  course  of  and  as  a  part  of  the  regular  circula 
tion  of  The  World/7  the  defendant's  counsel  moved  to 
quash  the  indictment  on  the  ground,  among  others,  that 
the  prosecution  was  unauthorized  by  any  statute  of  the 
United  States,  the  act  of  1898  not  applying  to  the  case 
as  disclosed  by  the  evidence. 

The  Court  expressed  the  opinion  that  Congress,  in 
enacting  the  measures  under  consideration,  had  never 
intended  to  do  more  than  intrust  to  the  Federal  courts 
the  punishment  of  offenses  "either  begun  and  ended  or 
primarily  committed  on  Federal  territory,"  and  quashed 
the  indictment,  "because,  upon  the  construction  of  the 
statute,  heretofore  stated,  the  judgment  is  not  author 
ized  by  the  statute  upon  which  it  rests." 

Argument  of  the  Defendant's  Counsel. 

In  argument  the  brief  emphasizes  Be  Laneey  Nicoll's 
contention  at  the  trial  that  the  prosecution  is  without 
precedent,  "that  during  the  eighty-five  momentous 


years  the  assimilative  Federal  statute  of  1825  has  been 
on  the  books  no  one  has  ever  claimed  till  now  that  the 
courts  of  the  United  States  have  jurisdiction  to  punish 
a  libel  first  printed,  published  and  circulated  in  one  of 
the  States,  and  which,  in  the  course  of  general  circula 
tion,  has  happened  to  penetrate  into  a  Federal  reserva 
tion.  As  there  are  over  two  thousand  such  places  in 
the  whole  country,  the.  publication  of  a  single  paper, 
under  that  interpretation,  might  constitute  more  than 
two  thousand  crimes. 

"It  would  thus  upon  the  contention  of  the  Govern 
ment,"  the  brief  continues,  "be  possible  to  crush  an 
owner  or  editor  under  an  intolerable  burden  of  crime; 
and,  if  this  be  not  injustice,  oppression  and  absurdity, 
we  can  conceive  of  nothing  that  would  answer  the  de 
scription.  If  to  this  be  added  the  possibility  of  removal, 
according  to  the  asserted  right  of  the  Department  of 
Justice,  the  entire  time  and  fortune  of  the  unhappy 
publisher  might  be  absorbed  in  the  endeavor  to  vindi 
cate  himself." 

After  setting  forth  with  great  elaborateness  and  power 
the  historical  aspect  of  the  case,  argument  is  made  that 
"the  effect  of  the  adoption  by  Congress  of  the  State 
law  is  that,  for  the  purposes  of  this  case,  the  State  stat 
utes  are  in  force  throughout  the  entire  territorial  limits 
of  the  State;"  that  the  State  law  provides  (section  251 
of  the  Penal  Code)  that  "a  person  cannot  be  indicted  or 
1  ried  for  the  publication  of  the  same  libel,  against  the 
same  person,  in  more  than  one  county,"  and  that  there 
fore  tho  Government's  contention  that  a  libel  is  a  sep 
arate  punishable  offense  on  every  "Federal  reservation 
into  which  the  paper  may  find  its  way,  necessarily 
makes  criminal  what  the  State  law  expressly  say?  i?  not 
criminal. 

Tt  is  further  argued  that  the  State  was  competent  to 
publish  the  publication  of  the  thirty  copies  covered  in 
the  indictment,  as  the  publication  was  within  tho  Jtiris- 
diction  of  the  State  of  ISTew  York;  and  a  concur 
rent  jurisdiction  wa?  never  intended.  Moreover, 
"By  isolating  this  trivial  portion  of  the  act  of  publication, 
and  creating  out  of  it  an  independent  crime,  Congress  would 
run  counter  to  the  policy  of  the  State  and  to  its  theory  of 
the  law  of  libel.  It  would  give  to  the  'offense  committed' 


in  Federal  territory  an  accumulation  of  punishment,  instead 
of  the  one  accorded  to  it  by  the  law  of  the  State,  In  spite  of 
the  expressed  purpose  to  the  contrary.  In  substance  it 
would  create  a  new  offense — one  not  known  to  the  State 
law." 

Mr.  McReynolds  Opened  for  the  (lovernweut. 

Two  hours  sufficed  for  the  arguments  before  the  Su 
preme  Court  on  Monday,  Oct.  24.  The  same  Justices 
sat  on  the  bench.  Attorney-General  Wickersham  took 
no  part  in  the  argument.  James  C.  McReynolds,  in 
opening  the  case  for  the  Government,  said : 

May  it  please  the  Court,  this  is  a  writ  of  error  to  re 
view  a  judgment  of  the  Circuit  Court  in  New  York 
quashing  an  indictment  against  The  Press  Publishing 
Company,  which  owns  and  prints  and  circulates  the 
]STew  York  World.  The  indictment  was  based  on  cer 
tain  alleged  slanderous  statements  in  reference  to  Mr. 
Eoosevelt  and  Mr.  Taft  and  others,  charging  them  with 
corrupt  conduct  touching  the  acquisition  of  the  Pan 
ama  Canal.  The  indictment  is  fair  on  its  face  and  it 
was  not  demurred  to.  It  charges  that  these  articles 
were  composed,  printed  and  published  within  the  con 
fines  of  West  Point  and  also  in  the  Post-Office  Build 
ing  in  ISTew  York  City,  both  being  places  under  the 
exclusive  jurisdiction  of  Congress. 

Mr.  Justice  Harlan:    You  say  "printed?" 

Mr.  McEeynolds:  The  indictment  charged  that  they 
were  printed,  published  and  circulated  within  the  limits 
of  these  two  places. 

Mr.  McReynolds  then  read  to  the  Court  section  2  of 
the  act  To  Protect  Harbor  Defenses  on  which  the  pros 
ecution  of  The  World  for  criminal  libel  was  based.  TTo 
continued: 

The  Government's  contention  is  that  the  effect  of  that 
statute  is  to  make  the  State  law  at  West  Point  and 
similarly  situated  places  Federal  law,  and  to  give  the 
Circuit  and  District  courts  power  to  enforce  the  pro 
visions  of  the  State  law,  not  because  it  is  State  law,  bin 
because  it  has  become  by  this  adoption  Federal  law 

Now  it  is  admitted  here  that  West  Point  and  the 
Post-Office  Building  are  both  "places"  within  the  mean 
ing  of  this  statute.  Libel  is  a  misdemeanor  under  the 


New  York  Penal  Code.  For  brevity's  sake  I  will  leave 
out  the  question  of  the  Post-Office  in  this  discussion, 
for  there  is  no  difference  between  the  two  places  from 
the  Government's  standpoint.  A  plea  of  not  guilty 
was  interposed  and  the  case  went  to  trial.  Certain  ad 
missions  were  made,  the  jury  being  in  the  box,  by  the 
defendant.  They  admitted  that  they  had  published 
these  articles  in  The  World,  that  The  "World  was  a 
paper  of  general  circulation,  that  copies  of  The  World 
went  to  West  Point  in  the  ordinary  course  of  its  circu 
lation. 

Then  the  Government  admitted  that  The  World,  in 
which  these  articles  appeared,  was  actually  printed  in 
Park  .Row;  that  it  was  not  actually  printed  within  the 
confines  of  West  Point,  and  that  the  copies  of  it  which 
contained  this  article  and  upon  which  this  indictment 
was  based  were  sent  into  West  Point  in  the  ordinary 
course  of  circulation. 

Mr.  Justice  White:    Sent  by  the  newspaper  itself? 

Mr.  McReynolds:  Sent  by  the  newspaper  itself  as  a 
part  of  its  ordinary  circulation — some  29  or  "30  copies. 
Then  evidence  was  introduced  by  the  Government  tend 
ing:  to  establish  the  colloquium. 

Mr.  McReynolds  then  told  of  quashing  the  indict 
ment  and  discussed  the  technical  point  of  whether  the 
c.a?e  was  now  in  "moot  case"  or  not.  He  continued: 

Coming  now  to  the  larger  question,  it  is  this:  A 
newspaper  is  actually  printed  within  the  city  of  ~N"ew 
York  and  outside  of  "Federal  jurisdiction.  Copies  of 
that  paper  are  sent,  in  the  resrular  course  of  its  circu 
lation,  into  West  Point  and  there  distributed.  Articles 
contained  in  the  papers  are  libellous  and  an  indictment- 
fair  upon  its  face  is  found.  Now,  does  the  fact  that  the 
flptual  printing  was  not  done  within  the  confines  of 
West  Point  destroy  the  power  of  the  "Federal  Govern 
ment  under  this  act  of  1898  to  punish  the  offense  of 
libel?  The  definition  of  libel  in  the  New  York  Penal 
Code  is  substantially  the  same  as  the  ordinary  one  at 
common  lav;. 
The  Government's  Contention  Plated. 

The  Government's  contention,  in  brief,  is  this:  Under 
the  well-understood  doctrine  in  respect  of  libel,  everv  publi 
cation,  every  passing  of  the  paper  containing  the  libel  from 


36 

one  person  to  another,  is  a  separate  and  distinct  offense. 
West  Point  is  a  district  under  the  exclusive  jurisdiction 
of  Congress,  and  offenses  committed  there  cannot  be  pun 
ished  by  the  New  York  law  at  all,  and  can  only  be  pun 
ished,  of  course,  by  an  act  of  Congress  which  directly  pro 
vides  for  the  punishment,  or  indirectly  by  adopting  the 
State  law.  Offenses  committed  at  West  Point  are  offenses 
not  against  the  State  of  New  York,  but  against  the 
United  States,  and  how  they  shall  be  punished  is  a  mat 
ter  for  Congress  and  Congress  alone.  In  other  words, 
in  respect  of  libel  West  Point  stands  substantially  in 
the  same  attitude  as  the  District  of  Cohimbia,  and  it  is 
not  only  within  the  power  of  Congress  to  provide  for 
the  punishment  of  libel  circulated  at  West  Point,  but 
it  is  the  duty  of  Congress  to  do  it. 

There  is  no  question  here  of  whether  or  not  a  man 
may  be  indicted  more  than  once,  or  whether  for  the 
same  cause  he  may  be  indicted  in  more  than  one  dis 
trict,  and  if  there  is,  it  is  the  settled  law  that  in  every 
county  in  the  United  States  when  a  newspaper  is  circu 
lated,  if  it  contains  a  libel,  somebody  is  guilty  of  libel 
and  may  be  indicted  there,  and  there  is  no  more  reason 
for  permitting  the  circulation  of  slanderous  papers 
within  the  confines  of  West  Point  than  there  would  be 
to  permit  them  to  circulate  in  New  Jersey  with  the 
same  impunity.  Therefore  I  submit  that  under  the 
ruling  of  this  Court  in  the  case  of  Franklin  v.  United 
States  it  is  perfectly  clear  that  an  offense  has  been 
committed  against  the  United  States.  The  only  ques 
tion  is  how  it  shall  be  punished,  and  that  has  been  pro 
vided  for  in  plain  terms  by  the  statute. 

Mr.  Justice  Harlan:  What  do  you  say  was  deckled 
in  the  Franklin  case  ? 

"Mr.  McEeynolds:  The  construction  of  this  act  of 
1898. 

De  Lancey  Nicoll's  Argument  for  the   Defendant. 

On  behalf  of  the  defendant  "De  Lance y  Nicoll  replied 
as  follows : 

^  Tf  Your  Honors  please,  the  only  question  in  this  case 

is  whether  this  prosecution  is  authorized  by  the  aot  of 

)8,  to  which  reference  has  just  been  made  bx 

the  learned  Assistant  Attorney-General.  It  appears  from 


37 

the  record  that  on  Oct.  3, 1908,  during  the  Presidential 
election  of  that  year,  and  on  the  subsequent  days  men 
tioned  in  the  indictment,  the  defendant,  the  Press  Pub 
lishing  Company,  composed,  printed  and  published  at  its 
printing  house  on  Park  Bow,  in  the  city  of  New  York, 
each  day  380,000  copies  of  the  paper  known  as  the 
New  York  World;  that  320,000  copies  of  the  paper 
circulated  throughout  the  State  of  New  York,  60,000 
copies  circulated  throughout  other  parts  of  the  United 
States;  that  29  copies  on  each  day  went  into  the  ceded 
place  known  as  West  Point,  and  that  one  copy  on  each 
day  went  into  the  ceded  place  known  as  the  Post-Office 
Building  in  the  city  of  New  York.  It  is  the  contention 
of  the  Government  that  by  the  circulation  of  these  29 
copies  in  West  Point  as  an  incident  of  the  daily  circu 
lation  of  The  World  on  each  day,  and  by  the  circula 
tion  of  one  copy  of  the  paper  in  the  Post-Office  Build 
ing  in  the  city  of  New  York  two  separate,  distinct  and 
independent  crimes  of  libel  were  committed,  one  in 
West  Point  and  the  other  in  the  Post-Office  Building  in 
the  city  of  New  York,  and  that  the  act  of  July  7, 1898, 
gives  the  courts  of  the  United  States  jurisdiction  to 
punish  these  two  alleged  offenses. 

We  answer  the  Government's  contention  by  saying 
that  the  construction  contended  for  by  it  is  within  nei 
ther  the  spirit  nor  the  letter  of  the  act  of  July  7, 1898. 

The  learned  Assistant  Attorney-General  contends 
that  the  burden  is  upon  the  defendant  to  show  that  its 
case  is  not  within  the  statute,  in  view  of  what  is  termed 
its  plain  language. 

But  I  do  not  understand  that  to  be  the  law.  The  ele 
mentary  rule  is  that  criminal  statutes  must  be  construed 
?trictly  in  favor  of  ,the  defendant,  and  that  before  a 
man  can  bo  convicted  of  a  crime  his  case  must  be 
plainly  and  unmistakably  within  the  statute,  and  that 
if  there  is  any  fair  doubt  upon  the  subject,  that  doubt 
must  be  resolved  in  favor  of  the  accused. 

My  first  proposition  is  that  even  if  the  language  of 
the  act  of  July  7,  1898,  were  literally  broad  enough 
to  cover  the  case  at  bar,  it  should  not  be  so  construed 
for  several  reasons. 

The  first  is  that  the  acquiescence  of  all  legal  minds 
for  nearly  a  centnry  in  the  negative  of  the  proposition 


38 

forbids  the  construction  now  for  the  first  time  asserted 
by  the  Government.  The  second  is  that  the  construc 
tion  contended  for  by  the  Government  would  lead  to 
injustice,  oppression  and  absurd  consequences.  The 
third  is  that  the  construction  contended  for  is  not  only 
unnecessary  to  remedy  the  definite  evil  or  mischief 
which  the  framers  of  the  act  of  1825,  upon  which  the 
act  of  1898  is  modelled,  had  in  mind,  but  would  lead 
to  another  evil  which  it  was  the  intention  of  the  framers 
of  that  act  to  avoid.  My  fourth  contention  is  that  the 
construction  of  the  Government  is  at  variance  with  the 
whole  life  and  history  of  the  country. 

Let  us  now  consider  the  first  reason,  which  is  that  the 
general  acquiescence  of  legal  minds  for  almost  a  cen 
tury  in  the  negative  of  the  proposition  forbids  the  con 
struction  now  for  the  first  time  asserted  by  the  Gov 
ernment. 

fhe  Indictment  Has  No  Predecessor. 

The  indictment  in  this  case  is  sui  generis.  It  has 
no  predecessor.  Books  and  records  may  be  searched  in 
vain  to  find  one  like  it.  It  is,  indeed,  a  legal  curiosity. 
Although  the  law  upon  which  the  Government  relies 
has  been  upon  the  statute  books  of  the  United  States 
for  eighty-five  years,  during  which  period  the  Govern 
ment  has  been  served  by  Attorneys-General  and  Dis 
trict-Attorneys  of  distinguished  learning  and  ability, 
and  during  which  the  great  newspapers  of  the  United 
States  have  been  circulating  throughout  the  States  and 
to  these  ceded  places,  this  is  the  first  time  in  the  history 
of  the  administration  of  American  criminal  law  when 
this  jurisdiction  of  the  United  States  has  been  asserted. 

I  say  that  it  has  been  eighty-five  years  since  Mr.  Jus 
tice  Story  conceived  this  statute  and  Congress  made  it 
a  part  of  the  law  of  the  United  States.  During  this 
period  four  wars  have  been  fought — one  of  them  a  civil 
war,  in  which  desperate  passions  were  aroused  and  tho 
very  existence  of  the  nation  was  at  stake;  three  Presi 
dents  have  been  assassinated;  the  country  has  passed 
through  twenty  Presidential  elections;  it  has  survived 
a  number  of  financial  panics ;  but  notwithstanding  these 
and  other  crises  in  our  national  existence,  and  all  the 
fierce  discussions  of  the  press  which  accompanied  them, 


39 

no  one  has  ever  claimed  till  now  that  a  libel  first  com 
posed,  printed  and  published  in  the  States,  and  circu 
lated  in  a  ceded  place  only  as  an  incidental  part  of  its 
general  circulation,  could  be  punished  in  the  courts  of 
the  United  States.  It  has  remained  for  the  lawyers  of 
our  day  and  generation  to  spell  out  of  this  statute  au 
thority  for  this  proceeding. 

Is  it  possible  that  during  all  thi^  dme,  when  without 
doubt  libellous  matter  printed  in  che  States  has  circu 
lated  to  the  ceded  places,  perhaps  reflecting  upon  per 
sons  resident  there,  that  if  such  a  jurisdiction  as  this 
existed  no  one  would  have  thought  of  it  before  ? 

To  my  mind  this  long  period  of  inactivity  is  a  most 
impressive  argument  against  the  contention  now  made 
by  the  Government. 

It  seems  to  have  become  the  settled  judgment  of  all 
lawmakers,  lawgivers  and  law  administrators  in  this 
country  that  no  such  jurisdiction  as  is  now  asserted 
exists. 

As  was  said  by  Mr.  Justice  Johnson,  in  delivering 
(7  Cranch,  32),  denying  the  right  of  the  Federal  courts 
the  opinion  of  the  Court  iii  United  States  v.  Hudson 
to  exercise  a  common  law  jurisdiction  in  criminal  cases: 

Although  this  question  is  (brought  up  now,  for  the  first 
time,  to  be  decided  by  this  Court,  we  consider  it  as  having 
been  long  since  settled  in  public  opinion.  In  no  other  case, 
for  many  years,  (has  this  jurisdiction  "been  asserted;  and 
the  general  acquiescence  of  legal  men  shows  the  prevalence 
of  opinion  in  favor  of  the  negative  of  the  proposition. 

I  may  say  in  passing  that  the  discoverer  of  this  new 
and  amazing  method  of  punishing  libel,  the  luminous 
intellect  whose  rays  first  detected  in  this  ancient  statute 
this  long  hidden  jurisdiction,  is  not  the  present  Attor 
ney-General  of  the  United  States.  Profound  as  is  his 
learning  and  deep  his  penetration,  he  is  not  equal  to 
this.  A  proper  tribute  to  greatness  compels  me  to 
accord  all  of  the  honor  to  his  immediate  predecessor. 
To  him,  and  to  him  alone,  we  are  indebted  for  the  in 
terpretation  of  the  statute  upon  which  this  prosecution 
depends,  and  for  the  revelation  that,  although  the  Se 
dition  law  expired  by  limitation  over  a  century  ago, 
Congress,  without  intending  it,  really  re-enacted  it  in 
the  year  1825  and  reaffirmed  it  as  late  as  the  year  1898. 


40 

My  next  contention  is  that  a  literal  construction  of 
the  statute  would  lead  to  injustice,  oppression  and  ab 
surd  consequences. 

Possible  to  Crush  Under  an  Intolerable  Burden. 

According  to  the  theory  of  the  Government  the  pub 
lication  of  the  alleged  libellous  matter  in  each  ceded 
place  on  each  day  is  a  separate  and  independent  crime, 
It  was  a  separate  and  independent  crime  to  circulate 
in  the  ceded  place  known  as  West  Point;  it  was  also 
a  separate  and  independent  crime  to  circulate  it  in  the 
Post-Office  Building.  This  very  indictment  charges 
two  separate  and  independent  crimes.  It  appears  from 
the  record  that  there  are  at  least  fifteen  of  these  ceded 
places  in  the  Southern  District  of  New  York  alone,  and 
that  there  are  over  two  thousand  such  places  scattered 
throughout  all  of  the  States  of  the  United  States.  If 
the  theory  of  the  Government  is  adopted,  then  fifteen 
separate  and  independent  crimes  were  committed  on 
each  day  in  the  Southern  District  of  New  York  alone , 
and  if  the  circulation  extended,  as  the  circulation  of  this 
paper  does,  throughout  all  the  States  of  the  United 
States,  and  probably  into  all  of  the  ceded  places,  then 
the  defendant  committed  over  two  thousand  crimes  on 
each  day,  and  was  exposed  to  prosecutions  in  every  part 
of  the  United  States.  He  might  be  prosecuted  for  circu 
lating  the  paper  in  the  Navy  Yard  in  Portland,  Me.; 
he  might  also  be  prosecuted  for  circulating  the  same 
paper  in  the  Presidio  at  San  Francisco.  And  it  is  to  be 
observed  that  this  theory  would  not  require  the  Gov 
ernment  to  elect,  because  its  contention  is  that  the  cir 
culation^  in  each  one  of  the  ceded  places  is  a  separate 
and  distinct  offense.  It  would  thus  be  possible  to  crush 
an  owner  or  editor  under  an  intolerable  burden  of 
crime,  and  if  this  be  not  injustice,  oppression  and  ab 
surd,  I  can  conceive  of  nothing  that  would  answer  the 
description.  If  to  this  be  added  the  contention  asserted 
by  the  Department  of  Justice,  of  the  right  to  remove  a 
defendant  from  one  district  to  another  for  trial,  it  if? 
apparent  that  the  entire  time  and  fortune  of  an  un 
happy  publisher  might  be  absorbed  in  an  endeavor  to 
vindicate  himself.  Such  a  construction,  of  course,  i* 
opposed  to  the  fundamental  principle  of  criminal  jurii- 


prudence,  that  crime  is  not  divisible,  and  that  where 
the  impulse  is  single  but  one  indictment  will  lie,  no 
matter  how  long  the  action  may  continue. 

It  is  not  necessary  for  the  decision  of  this  case  to 
impeach  the  constitutionality  of  the  statute  which  we 
are  considering,  but  when  we  remember  that  the  first 
amendment  of  the  Constitution  of  the  United  States 
provides  that  Congress  shall  pass  no  law  abridging  the 
freedom  of  the  press,  it  at  least  raises  a  substantial  do/bt 
as  to  whether  a  statute  which  puts  it  in  the  power  of  the 
Federal  Government  to  so  harass  and  oppress  a  pub 
lisher  as  to  make  it  impossible  for  him  with  safety  to 
discuss  freely  public  affairs  does  not  come  within  the 
prohibition  of  the  amendment. 

Would  Create  an  Evil  Congress  Intended  to  Avoid. 

This  brings  me  to  my  third  objection  to  the  Govern 
ment's  construction,  which  is  that  it  is  not  only  unneces 
sary  to  remedy  the  definite  evil  aimed  at  by  Congress 
but  it  would  create  an  evil  which  it  was  the  intention 
of  Congress  to  avoid. 

The  act  of  1898,  as  has  been  stated,  was  founded 
upon  the  act  of  1825.  When  we  come  to  review  the 
history  of  the  passage  of  that  act  through  Congress, 
and  the  debates  which  attended  it,  it  becomes  apparent 
that  the  act  of  1825  had  one  general  purpose,  and  only 
one — to  provide  for  the  punishment  of  acts  which  could 
not  be  punished  by  the  States,  and  which,  if  not  proso- 
fiited  by  the  Federal  Government,  would  go  wholly 
unpunished.  The  definite  evil  aimed  at  was  the  defect 
in  the  Criminal  Code  of  the  United  State?,  which  al 
lowed  so  many  crimes  to  go  unpunished. 

The  first  Federal  Crimes  act  was  passed  at  the  second 
session  of  the  First  Congress,  and  was  approved  by 
President  Washington  on  April  30,  1790.  It  was  soon 
discovered  to  be  defective.  Many  crimes  escaped  pun 
ishment  because  Committed  in  places  within  the  Union 
but  excepted  from  State  jurisdiction,  and  because  tho 
Federal  law  failed  to  provide  for  the  offenses  in  ques 
tion.  Statutes  were  passed  from  time  to  time  to  supply 
these  deficiencies  and  the  view  was  advanced  that  the 
Federal  courts  were  authorized  to  exercise  a  common 
law  jurisdiction  in  criminal  eases — a  contention  which 


42 

was  disposed  of  by  this  Court,  an  WP  have 'soon',  in  the 
case  of  United  States  v.  Hudson. 

.Mr.  Justice  Story  was  a  member  of  the  court  and  par 
ticipated  in  that  decision.  He  was  quick  to  perceive  its 
results  and  the  necessity  for  legislation  by  Congress. 
Accordingly  in  1813  he  prepared  and  sent  to  Attorney  - 
General  Pinkney  some  sketches  of  improvement 
in  the  Criminal  Code  of  the  United  States  with  a  letter, 
in  which  he  said: 

It  is  grossly  and  barbarously  defective.  The  courts  are 
crippled,  offenders,  conspirators  and  traitors  are  enabled  to 
carry  on  their  purposes  almost  without  check. 

"What  think  you,"  he  queried  in  a  letter  shortly  afterward, 
"of  a  government  where  public  crimes  on  the  seas  are,  with 
very  tfew  exceptions,  lelft  wholly  unpunished,  and  crimes  on 
the  land  are  suffered  to  remain  without  the  least  criminal 
action?" 

But  notwithstanding  the  necessity  pointed  out  by 
Mr.  Justice  Story,  ten  years  elapsed  before  the  matter 
was  taken  up  by  Congress,  a  delay  which  is  accounted 
for  only  by  the  fact  that  the  country  was  then  passing 
through  a  period  of  reaction  from  the  "ardent  nation 
alism"  which  culminated  in  1812,  and  because  the  lead 
ers  in  Congress  were  too  jealous  of  the  new  and  unex 
pected  powers  which  the  National  Government  had 
been  found  to  possess  to  pass  a  law  conferring  upon  it 
even  adequate  jurisdiction  in  criminal  cases. 

Meanwhile  Mr.  Justice  Story  had  drawn  a  bill  deal 
ing  with  the  subject,  the  eleventh  section  of  which 
became  the  basis  of  section  3  of  the  act  of  1825,  and  of 
section  2  of  the  act  of  1898,  upon  which  the  indictment 
is  founded. 

This,  he  said,  in  a  carefully  prepared  argument  in 
which  the  bill  was  taken  up  clause  by  clause,  and  its 
provisions  and  purposes  explained, 

la  the  most  important  section  of  the  whole  bill.  The  Crimi 
nal  Code  of  the  United  States  is  singularly  defective  and 
Inefficient.  *  *  Few,  very  few,  of  the  practical  crimee 
(If  I  may  so  say)  are  now  punishable  by  statutes,  and  if 
the  courts  have  no  general  common  law  jurisdiction  (which 
te  a  vexed  question)  they  are  wholly  dispunishable.  The 
State  courts  have  no  jurisdiction  of  crimes  committed  on 
the  high  seas  or  in  places  ceded  to  the  United  States. 
Rapes,  arsons,  batteries  and  a  host  of  other  crimes  may  ID 
these  places  be  now  committed  with  impunity.  Suppose  a 
conspiracy  to  commit  treason  In  any  of  these  placet  by 


48 

civil  persons,  how  can  the  crime  be  punished?  These  are 
cases  where  the  United  States  have  an  exclusive  local  juris 
diction.  And  can  it  be  less  fit  that  the  Government  should 
have  power  to  protect  itself  in  all  other  places  where  it 
exercises  a  legitimate  authority.  That  Congress  has  power 
to  provide  for  all  crimes  against  the  United  States  is  in 
contestable. 

Again  he  said: 

The  printed  (bill  was  originally  -prepared  by  myself  and 
submitted  to  my  brethren  of  the  Supreme  Court.  It  re 
ceived  a  revision  from  several  of  them,  particularly  Judges 
Marshall  and  Washington,  and  was  wholly  approved  by 
them,  and  indeed,  except  as  to  a  single  section,  by  all  the 
other  Judges.  Judge  Johnson  expressed  some  doubt  as  to 
'the  eleventh  section;  'but,  as  I  understood  him,  rather  as 
to  its  expediency  than  the  competency  of  Congress  to  enact 
it.  I  think  that  I  am  at  liberty  to  say  that  it  will  be  satis 
factory  to  the  Court  if  it  is  passed. 

With  Mr.  Justice  Story's  draft  before  him,  Mr.  Web 
ster,  who  was  Chairman  of  the  Committee  on  the  Judi 
ciary,  drew  a  bill,  which  with  some  modifications  passed 
both  houses  of  Congress. 

"Where  the  States  Had  Power  to  Punish." 

The  debates  upon  the  bill  show  clearly  that  the  sole 
purpose  of  the  act  was  to  punish  crimes  which  would 
otherwise  have  gone  altogether  unpunished — that  is, 
to  punish  crimes  begun  and  ended,  or  primarily  com 
mitted,  within  the  exclusive  jurisdiction  of  the  United 
States,  for  which  there  was  no  law.  But  they  show 
another  thing  with  equal  clearness,  and  that  is  that 
where  the  States  had  the  power  to  punish  an  offense 
there  was  no  intention  to  confer  any  jurisdiction  upon 
the  Federal  Government. 

Mr.  Justice  Harlan:  Wliat  do  you  say  concerning 
r-he  punishment  of  a  libel  in  the  ceded  district  ? 

Mr.  Nicoll :  We  have  the  power  to  punish  under  the 
State  law.  Under  this  very  law  of  New  York,  to  which 
reference  has  been  made,  we  punish  the  publication  as 
one  indivisible  act. 

Mr.  Justice  Harlan:  It  is  only  punished  iu  TsTew 
York  where  it  is  printed,  then? 

Mr.  Nicoll:    This  act  takes  over  the  New  York  stat 
ute,  and  under  the  New  York  statute  the  act  of  publi 
cation  is  the  thing  that  is  punished.    The  publication  is 
regarded  as  one  and  indivisible, 


44 

Mr.  Justice  Harlan:  What  do  you  mean  by  the  pub 
lication  ? 

.Mr.  Nicoll:  The  New  York  Code  defines  it  and  states 
what  publication  is.  Section  243  of  the  ^  Penal  Code 
"provides  that  a  person  who  publishes  a  libel  is  guilty 
of  a  misdemeanor."  Section  245  provides: 

To  sustain  a  charge  of  publishing  a  libel  it  is  not  neces 
sary  that  the  matter  complained  of  should  be  seen  by  an 
other.  It  is  enough  that  the  defendant  knowingly  displayed 
It  or  parted  with  its  immediate  custody  under  circum 
stances  which  exposed  it  to  be  seen  or  understood  by  an 
other  person  than  himself. 

Mr.  Justice  Holmes:  Is  it  part  of  your  argument, 
Mr.  Nicoll,  that  the  words  "when  an  offense  is  com 
mitted/'  which  is  a  curiously  ambiguous  expression, 
must  refer  to  a  State  law  ? 

Mr.  Nicoll:    Yes. 

Mr.  Justice  Holmes:  And  that  it  must  mean  that 
when  something  is  done  which  under  the  State  law,  if  it 
had  jurisdiction,  would  be  punishable  there,  it  should 
be  punished  there  ? 

Mr.  Nicoll:    Yes. 

Mr.  Justice  Holmes:  And  that  under  the  State  law 
this  kind  of  a  publication  at  West  Point  was  not  an 
offense  at  all,  because  the  only  offense  that  was  com 
mitted  was  the  parting  of  possession  of  the  newspapers 
from  the  place  of  printing  in  New  York  ? 

Mr.  Nicoll:  That  is  it  precisely,  but  it  is  not  the 
point  I  am  discussing  now.  That  will  arise  when  I 
come  to  point  out  that  this  case  is  not  even  within  the 
letter  of  the  statute.  What  I  am  now  showing  is  that, 
no  matter  how  plain  the  letter  may  be,  it  is  not  within 
the  spirit  of  the  statute  and  was  not  intended  by  its 
framers. 

Mr.  Justice  White:  Is  there  any  room  to  come  to 
the  spirit,  for  you  say  "no  matter  how  plain  ?" 

Mr.  Nicoll:   I  think  so;  let  us  see — 

Mr.  Justice  White :  I  do  not  want  to  interrupt  your 
argument,  it  just  struck  me. 

Mr.  Nicoll  (continuing):  I  should  have  called  Your 
Honors'  attention  to  two  cases  in  this  court  which  seem 
to  me  to  settle  everything  whidh  I  have  stated  on  that 
point.  They  are  to  be  found  on  pagee  12  and  13  of  the 


45 

brief.     One  is  the  case  of    United  States  v.   Palmer, 
3  Wheat.,  610. 

An  illustration  of  the  rule,  even  more  impressive, 
is  to  be  found  in  the  case  of  Holy  Trinity  Church  v. 
United  States,  143  U.  S.,  457.  There  it  was  held  that 
an  act  forbidding  the  importation  of  aliens  "under  con 
tract  or  agreement  *  to  perform  labor  or  ser 
vices  of  any  kind  in  the  United  States"  did  not  include 
a  contract  between  an  alien  and  a  religious  corporation, 
whereby  the  former  removed  to  the  United  States  and 
entered  into  the  service  of  the  latter  as  its  rector.  In 
the  course  of  an  exhaustive  opinion,  delivered  by  the 
late  lamented  Mr.  Justice  Brewer,  it  was  said : 

The  construction  invoked  cannot  be  accepted  as  correct. 
It  is  a  case  where  there  was  presented  a  definite  evil,  in 
view  of  which  the  Legislature  used  general  terms  with  the 
purpose  of  reaching  all  phases  of  that  evil,  and  thereafter, 
unexpectedly,  it  is  developed  that  the  general  language 
thus  employed  is  broad  enough  to  reach  cases  and  acts 
which  the  whole  history  and  life  of  the  country  affirm 
could  not  have  been  intentionally  legisQated  against.  It  is 
•the  duty  of  the  courts,  under  those  circumstances,  to  say 
that,  however  broad  the  language  of  the  statute  may  be, 
the  act,  although  within  the  letter,  is  not  within  the  in 
tention  of  the  Legislature,  and  therefore  cannot  be  within 
the  statute. 

The  determined  purpose  of  Congress  to  avoid  any 
question  of  conflicting  jurisdiction  appears  particularly 
throughout  the  debates  upon  the  fourth  section. 

Tt  is  there  apparent  that  the  principle  that  there 
should  not  be  created  a  concurrent  jurisdiction  in  the, 
State  nud  "Federal  Governments  to  punish  crime  was 
vigorously  asserted  in  the  debates  on  the  bill,  and  found 
expression  in  it  against,  in  one  particular,  the  powerful 
opposition  of  Webster. 

No  Intention  to  Give  Federal  Courts  Jurisdiction. 

Now,  I  think  that,  notwithstanding  tho  broad  lan 
guage  of  the  act,  any  one  who  reviews  its  history  and 
Considers  the  situation  as  it  existed  at  the  time,  and  as 
it  was  pressed  upon  the  attention  of  Congress,  cannot 
fail  to  see  that  there  was  no  intention  under  this  act  to 
give  the  courts  of  the  United  States  jurisdiction  of  any 
offense  which  could  be  punished  by  the  States.  Let  me 
illustrate :  Take  the  case  of  a  conspiracy  committed 
\vithin  the  State.  An  overt  act  is  committed,  we  ^vfQl 


46 

say,  in  a  ceded  place,  which  might,  perhaps,  gire  the 
courts  of  the  United  States  jurisdiction  over  the  of 
fense.  But  that  was  not  intended,  because  it  was  a 
crime  consisting  of  more  than  one  act,  where  some  acts 
were  committed  within  the  State  and  some  without  the 
State,  and  where  the  State  had  jurisdiction  to  punish 
on  account  of  the  acts  committed  within  its  borders. 
Or  take  the  crime  of  nuisance  existing  on  territory 
adjoining  a  ceded  place  but  affecting  persons  dwelling 
fhere.  Here  there  is  no  reason  why  the  United  States 
should  punish  the  offense.  The  States  have  full  juris 
diction.  And  so  with  the  crime  of  libel  first  printed 
find  published  in  the  -States  where  some  of  the  news 
papers  happen  to  float  to  the  Federal  place  in  the  ordi 
nary  course  of  daily  circulation.  In  other  words,  where, 
nnder  this  act,  a  State  -can  punish  the  offense  the  courts 
of  the  United  States  have  no  jurisdiction.  •  Its  only 
jurisdiction  is  where  the  States  cannot  punish.  If  in 
one  of  these  Federal  places  a  person  should  set  up  a 
printing  press  and  circulate  a  paper  containing  libels,  or 
if  one  could  write  and  circulate  libellous  matter  with 
in  the  ceded  territory,  it  is  clear  that  only  the  United 
States  would  have  jurisdiction  to  punish  the  offense. 

No  Ear  to  Federal  Prosecutions? 

Any  ^other  view  would  lead  to  the  very  difficulties 
which  it  was  the  purpose  of  Congress  to  avoid.  If  thr> 
Government's  theory  is  sound,  the  publisher  of  an  al 
leged  libel  originally  uttered  in  State  territory,  but 
incidentally  spreading  into  one  of  these  ceded  places, 
might,  after  a  trial  and  acquittal  or  conviction  in  a 
State  court,  be  subsequently  prosecuted  and  punished 
in  a  Federal  tribunal  because  of  the  technical  republi- 
cation  of  the  libel  on  national  soil.  Would  the  acquittal 
or  conviction  in  the  State  court  be  a  bar  to  the  Federal 
prosecution  ?  Our  adversaries  say  no,  because  an  act  of 
publication  operating  In  two  distinct  jurisdictions  con- 
-'titutes  two  crimes,  one  of  which  will  go  wholly  unpun- 
t'shed  unless  by  means  of  a  Federal  prosecution. 

let  us  suppose  that  in  the  Congress  of  1825  some 
member  had  offered  a  bill  giving  the  Federal  Govern 
ment  the  nght,  in  terms,  to  take  cognisance  of  news- 


paper  libels  incidentally  circulating  in  Federal  terri 
tory,  or  of  any  other  crime  punishable  under  State  laws, 
provided  only  that  some  portion  of  the  crime,  however 
trivial,  took  place  on  Federal  soil.  Can  it  be  believed 
vhat  such  a  measure  would  not  have  been  received  with 
nn  outburst  of  indignant  protest  from  every  other  mem 
ber  of  the  House  ?  Yet  it  is  seriously  contended  that 
he  act  of  1825  accomplished  precisely  this  result. 
My  last  contention  on  this  point  is  that  the  construc 
tion  contended  for  by  the  Government  is  at  variance 
with  the  whole  life  and  history  of  the  country,  because 
its  necessary  result  would  be  to  confer  upon  the  Fed 
eral  authority  the  power  to  control  the  press. 

The  Power  to  Control  the  Pret*s. 

There  are  in  the  United  States  over  two  thousand 
Federal  places,  scattered  all  over  the  "Onion.  They  are 
to  be  found  in  large  numbers  in  every  State,  and  neces- 
«»arily  in  every  judicial  district.  It  is  a  matter  of  com 
mon  knowledge  that  in  almost  all  of  them  the  news 
papers  which  are  printed  in  all  of  the  States  circiilate 

a  greater  or  less  extent.  In  order  to  bring  these  acts 
within  the  jurisdiction  of  the  Federal  courts  all  that 
the  Department  of  Justice  need  do  is  to  find  some 
•opies  of  the  offending  journal  circulating  in  one  or 
more  of  these  places  and  then  proceed  with  a  prosecu 
tion  of  the  publisher  on  the  theory  that  the  courts  of 
the  United  States  have  jurisdiction  because  of  the  inci 
dental  publication  of  the  libel  in  its  territory.  The 
prosecution  might,  it  is  true,  take  the  form  of  an  indict 
ment  for  libel  of  an  individual,  but  the  theory,  once 
^tablished,  would  put  it  in  the  power  of  the  Federal 
Government  to  use  the  courts  of  the  United  States  to 
prosecute  any  publisher  who  had  attacked  the  Govern 
ment  or  the  character  of  "public  officials  by  criticising 
their  public  acts.  In  a  word,  it  would  give  the  Federal 
O-overnment  complete  control  of  the  press  of  the  United 
States. 

ff  this  theory  can  be  maintained  we  shall  revive  in 
our  day  and  generation  the  Sedition  act,  of  1798,  whicli 
for  over  a  century  has  been  condemned,  not  only  as 
unconstitutional  but  as  contrary  to  the  genius  of  our 
free  institutions ;  for  if  there  is  one  thing  in  this  coun- 


48 

try  which  is  settled  by  the  verdict  of  history  it  IB  that 
the  power  to  control  the  press  shall  not  be  intrusted  to 
the  ISTational  Government,  but  shall  be  left  to  the  tri 
bunals  of  the  several  States.  Is  it  possible  to  suppose 
that  the  Congress  of  1825  intended  to  pass  an  act  which 
would  enable  Federal  courts  to  exercise  this  forbidden 
power? 

History  of  the  Notorious  Sedition  Act. 

The  answer  is  to  be  found  in  the  history  and  fate  of 
the  one  memorable  attempt  of  the  Federal  Government 
to  assume  that  very  jurisdiction,  an  attempt  which,  in 
5825  w«as  still  fresh  in  the  memory  of  public  men. 

On  July  14,  1798,  was  passed  the  notorious  Sedition 
act  (1  Stat.,  596),  section  2  of  which  made  it  punish 
able,  under  heavy  fine  and  imprisonment,  to  print  or 
publish  any  false,  scandalous  and  malicious  writings 
against  the  Government  of  the  United  States,  or  either 
House  of  Congress,  or  the  President,  with  intent  to 
defame  them,  or  to  bring  them  into  contempt  or  dis 
repute,  or  to  excite  against  them  the  hatred  of  the 
good  people  of  the  United  States,  or  to  stir  up  sedition, 
or  with  intent  to  excite  any  unlawful  combination  for 
opposing  or  resisting  any  law  of  the  United  States,  or 
any  lawful  act  of  the  President,  or  to  resist,  oppose 
or  defeat  any  such  law  or  act,  or  to  aid,  encourage  or 
abet  any  hostile  designs  of  any  foreign  nation  again sfc 
tho  United  States. 

Although  the  act  by  its  terms  was  to  continue  in 
force  only  until  the  4th  day  of  March,  1801,  the  preju 
dice  against  it  was  so  strong  and  universal  that,  accord 
ing  to  the  unanimous  judgment  of  historians,  it  led  to 
the  overthrow  of  the  Administration,  the  election  of 
Jefferson  and  the  ascendancy  of  the  Republican  party. 

Mr.  Justice  Farlan:  "What  have  you  to  say  as  to  the 
nower  of  Congress  to  make  it  an  'offense  against  the 
United  States  to  circulate  a  written  document  in  tho 
West  Point  Reservation,  which  contains  a  libel? 

Mr.  "Nicoll:  Congress  has  not  done  so.  It  may  be 
nrgiied  that  Congress  has  the  power  to  do  so,  although 

think  there  would  be  very  grave  doubts  about  the 
constitutionality  of  such  an  net,  but  at  all  events  Con 
gress  hasn't  done  so, 


49 

Mr.  Justice  Harlan:  I  think,  perhaps,  it  might  have 
*ome  bearing  upon  the  exact  question  here. 

Mr.  Nicoll:  Congress  has  not  passed  such  an  act.  I 
do  not  suppose  that  if  such  a  proposal  had  been  made 
in  Congress  in  1825  it  would  have  received  any  sup 
port.  I  believe  it  would  have  been  met  with  the  unani 
mous  protest  of  both  houses  of  Congress  if  at  that  time 
anybody  had  proposed  to  give  the  Federal  Government 
the  power  which  is  indicated  by  Your  Honor's  question. 

Mr.  Justice  Harlan :  I  did  not  intend  to  express  any 
opinion  about  the  matter.  I  only  wanted  to  get  your 
views  on  that  subject. 

Mr.  i^icoll  (continuing) :  I  was  speaking  of  the  very 
general  public  feeling  against  the  Sedition  law.  As  is 
well  known,  the  prosecutions  under  the  act  were  very 
unpopular.  The  impeachment  proceedings  against  Jus 
tice  Chase  were  based,  in  part,  upon  his  conduct  in  ono 
of  them.  Jefferson  and  Madison  at  once  took  the  posi 
tion  that  the  act  was  unconstitutional,  and  embodied 
these  views  in  the  famous  Kentucky  and  Virginia  reso 
lutions. 

The  criticism  of  the  act,  and  the  widespread  convic 
tion  that  it  was  unconstitutional,  were  not  based  on  any 
particular  stringency  in  its  provision,  but  upon  the 
bolief  that  Congress  had  no  power  to  legislate  upon  tho 
subject  of  libel,  that  being  a  matter  peculiarly  within 
the  cognizance  of  the  State?.  The  Kentucky  resolu 
tions  asserted  that — 

Libel*,  falsehoods  and  defamation,  equally  with  heresy  and 
false  religion,  are  withheld  from  the  cognizance  of  Federal 
tribunals. 

The  act  wag  even  opposed  by  Marshall  and  Hamilton, 
probably  the  two  ablest  constitutional  lawyers  in  HIP 
ranks  of  the  Federalist  party. 

On  his  accession  to  the  Presidency,  Mr.  Jefferson 
pardoned  every  one  who  had  been  convicted  of  a  vio 
lation  of  it.  In  a  letter  to  Mrs.  Adams,  the  wife  of  his 
predecessor,  who  wrote  him  complaining:  about  the  par 
don  of  Callender,  who  had  been  convicted  of  libelling 
her  husband,  he  said: 

I  do  not  know  who  was  the  particular  wretch  alluded  to, 
but  I  discharged  every  person  under  punishment  or  prose* 


eution  under  the  Sedition  law  because  I  considered,  and 
now  consider,  that  law  to  (be  a  nullity. 

On  Sept.  11,  1804,  lie  again  wrote  to  Mrs.  Adams: 

While  we  deny  that  Congress  have  a  right  to  control  the 
freedom  of  the  press,  we  have  ever  asserted  the  right  of  the 
States,  and  their  exclusive  right,  to  do  so.  They  have  ac 
cordingly,  all  otf:  them,  made  provisions  for  punishing  slan 
der,  which  those  who  have  time  and  inclination  resort  to 
for  the  vindication  of  their  characters.  In  general  the 
State  laws  appear  to  have  made  the  presses  responsible  for 
slander  as  (far  as  Is  consistent  with  its  useful  freedom. 


The  Trial  of  Judge  Peck. 

In  1830  occurred,  in  the  room  in  which  I  am  now 
speaking,  the  trial  of  Judge  Peck  before  the  Senate  of 
the  United  States.  Two  of  the  managers  on  the  parr, 
of  the  House  of  Representatives  were  James  Buchanan 
and  Mr.  McDuffie  of  South  Carolina.  Both  of  them 
were  members  of  the  House  in  1825,  and  Buchanan  was 
one  of  the  members  of  the  Judiciary  Committee  which 
reported  the  Crimes  act  of  that  year.  Indeed,  it  was  ho 
who  offered  the  resolution  which  finally  resulted  in  the 
enactment  of  the  law. 

In  his  argument  on  the  trial  of  Judge  Peck  in  1830, 
although  he  had  been  a  warm  supporter  of  the  act  of 
1825,  Mr.  Buchanan,  after  referring  to  the  constitu 
tional  prohibition  against  the  making  of  any  law  abridg 
ing  the  freedom  of  speech  or  of  the  press,  said : 

What  was  the  Intention  of  this  provision?  The  framers 
of  the  Constitution  well  knew  that  under  the  laws  of  each 
of  the  States  composing  this  Union  libels  were  punishable. 
They  therefore  left  the  character  of  the  officers  created 
under  the  Constitution  and  laws  of  the  United  States  to  be 
protected  by  the  laws  of  the  several  States.  They  were 
afraid  to  give  this  Government  any  authority  over  the  sub 
ject  of  libels,  lest  its  colossal  power  anight  be  wielded 
against  the  liberty  of  the  press.  They  have  guarded  it  with 
a  wholesome  and  commendabble  jealousy.  *  '  *  *  The 
popular  odium  which  attended  this  law  was  not  excited  by 
its  "particular  provisions,  but  by  the  fact  that  any  law  upon 
the  subject  was  a  violation  of  the  Constitution.  Congress 
had  no  power  to  pass  any  law  of  the  kind,  good  or  bad.  It 
is  now,  I  believe,  freely  admitted  (by  every  person  (I  at  least 
have  not  for  several  years  conversed  with  any  man  who 
held  a  contrary  opinion)  that  Congress,  in  passing  this  act, 
had  transcended  their  powers.  I  have  no  doubt  that  the 
motives  of  many  of  those  who  passed  it  were  perfectly 
pure;  [but  yet,  if  any  principle  has  been  established  beyond 


41 

a  doubt  by  th«  almost  unanimous  opinion  of  the  people  of 
the  United  States  it  is  that  the  Sedition  law  was  uncon 
stitutional. 

In  the  same  case  Mr.  McDuffie  said: 

In  pronouncing  sentence  of  condemnation  upon  this  Sedi 
tion  law  the  ipeople  of  the  United  States  have  solemnly 
decided  that  the  Federal  Legislature  has  no  power  to  pro 
tect  the  public  functionaries  'from  even  the  most  abusive 
and  licentious  exercise  of  the  freedom  of  the  press,  holding 
that  the  State  Legislatures  and  State  tribunals  are  more 
safe  depositories  of  that  power;  and  suoh  is  the  plain  lan 
guage  of  the  Constitution. 

In  1833  Mr.  Buchanan,  then  Minister  to  Kussia,  told 
Count  ISTesselrode  that —  • 

The  press  was  essentially  free  in  our  country.  Even  the 
Oongress  of  the  United  States  had  no  power  to  pass  any 
law  for  the  punishment  of  a  libel  on  the  President.  This 
subject  was  entirely  within  the  jurisdiction  of  the  several 
States. 

In  1836,  in  consequence  of  a  recommendation  con 
tained  in  a  message  from  President  Jackson,  a  select, 
committee  of  the  Senate  returned  a  bill  prohibiting  the 
Transmission  through  the  mails  of  inflammatory  publi 
cations  tending  to  incite  popular  discontent,  and  giving 
the  President  power  to  decide  as  to  the  character  of  the 
publications  sought  to  be  transmitted.  In  a  speech  in 
opposition  to  the  measure  Mr.  Calhoun  asserted  that— 

It  would  place  in  the  hands  of  the  General  Government, 
an  instrument  more  (potent  to  control  fche  freedom  of  the 
press  Mian  the  Sedition  flaw  itself. 

On  July  4,  1840,  President  Van  Buren  approved  an 
act  directing  the  Secretary  of  the  Treasury  to  pay  to 
the  legal  representatives  of  Matthew  Lyon  the  fino 
which  had  been  imposed  on  Lyon  in  1799  under  the 
Sedition  act,  with  interest  in  full. 

House  Report  in  the  Matthew  Lyon  Crs?. 

In  reporting  the  bill  to  the  House  the  Committee  on 
tli<*  .IndiViorv  adontpfl  a  report  nf  the  same  committee 
made  in  1830,  which  roads  as  follows: 

The  committee  are  of  ooinion  that  the  law  above  recited 
wag  unconstitutional,  .null  and  void,  passed  under  a  mis 
taken  exercise  of  undelegated  'Dower,  and  that  the  mistake 
ouffht  to  be  corrected  by  returning  the  fine  so  obtained, 
with  interest  thereon,  to  the  legal  representatives  of  Mat- 


52 

thew  Lyon.  The  committee  do  not  deem  it  neoeeaary  to 
dlactiBB  at  length  the  character  of  that  law,  or  to  assign  all 
the  reasons,  however  demonstrative,  that  have  induced  the 
conviction  of  its  unconstitutionality.  No  question  con 
nected  with  the  lilberty  of  the  press  ever  excited  a  more 
universal  and  intense  interest — ever  received  so  acute,  able, 
long  continued  and  elaborate  investigation— was  ever  more 
generally  understood  or  so  conclusively  settled  toy  the  con 
curring  opinions  of  all  parties.  All  that  now  remains  to  be 
done  by  the  representatives  of  the  people  who  condemned 
this  act  oif  their  agents  as  unauthorized,  and  transcending 
their  grant  of  power,  to  place  ibeyond  question,  doubt  or 
cavil  that  mandate  of  the  Constitution  prohibiting  Con 
gress  from  abridging  the  liberty  of  the  press,  and  to  dis 
charge  an  honest,  just,  moral  and  honorable  obligation,  is 
to  refund  from  the  Treasury  the  fine  thus  illegally  and 
'wrongfully  obtained  from  one  of  their  citizens,  for  which 
purpose  the  committee  herewith  report  a  bill. 

The  bill  passed  the  House  by  a  vote  of  124  to  15. 

"Thus,"  says  Wharton,  "just  forty  years  after  the  pas 
sage  of  the  iSedition  law  was  its  last  vestige  effaced  and  its 
doctrines  formally  disowned." 

In  1844  and  again  in  1850  Congress  passed  similar 
acts,  respectively  approved  by  Presidents  Tyler  and 
Fillmore,  directing  the  repayment  of  the  fines  which 
had  been  imposed  on  Anthony  Haswell  in  1 800,  and  on 
Thomas  Cooper  in  1798,  under  the  Sedition 'act. 

In  1881  David  Dudley  Field,  one  of  the  most  emi 
nent  jurists  of  our  generation,  speaking  of  the  Sedition 
act,  said: 

If  this  were  within  the  competency  of  Congress,  the  pun 
ishment  of  libel  upon  any  officer  of  the  United  States  woirld 
be  equally  within  its  competency.  Indeed  it  is  not  easy  to 
perceive  why  Congress  might  not  take  upon  itself  all  reme 
dies,  criminal  and  civil,  for  any  wrong  done  to  the  good 
name,  person  or  property  of  any  Federal  officer,  and  send 
the  parties  before  the  Federal  courts  for  trial.  Can  there 
foe  any  doubt  that  such  -an  assumption  of  power  was  never 
dreamed  of  by  those  who  framed  or  those  who  ratified  the 
Federal  Constitution? 

And  in  Ex  parte,  McLeod,  120  Fed.  Rep.,  130,  de 
cided  in  1903,  the  Court  said: 

Profound  distrust  of  the  ability  of  the  people  to  govern 
themselves,  alone,  made  it  possible  to  enact  the  Alien  and 
Sedition  laws,  which  expired  by  their  own  limitations  and 
'were  ever  afterward  condemned  by  the  aggressive  power 
or  a  dominant  'puiblic  opinion,  which  proclaimed  as  a  maxim 
of  government  that  greater  danger  to  liberty  and  free  insti 
tutions  lurked  in  any  power  to  curb  the  right  of  free  speech 
and  liberty  of  the  press  than  from  any  abuses  which  might 
result  from  leaving  them  untrammelled.  This  public  opin- 


58 

ion,  which  has  been  acquiesced  in  by  all  departments  of  the 
Government,  and  gone  unchallenged  for  a  century  past,  has 
pronounced  a  construction  of  the  Constitution  in  this  re 
spect  which  has  silently  incorporated  itself  into  that  in 
strument. 

President  Roosevelt's  Message  of  Dec.  15,  1908. 

In  view  of  this  chapter  of  our  history  the  special 
message  to  Congress  of  the  President  of  the  United 
States  of  Dec.  15,  1908,  makes  curious  reading.  Speak 
ing  of  the  newspaper  stories,  then  recently  in  circula 
tion,  with  respect  to  the  transactions  alluded  to  in  this 
indictment,  the  President  said : 

I  do  not  believe  we  should  concern  ourselves  with  the 
particular  individuals  who  wrote  the  lying  and  libellous 
editorials,  articles  from  corresipondents  or  articles  in  the 
news  coilumus.  The  real  offender  is  Mr.  Joseph  Pulitzer, 
editor  and  proprietor  of  The  World.  While  the  criminal 
offense  of  which  Mr.  Pulitzer  has  been  guilty  is  in  form  a 
libel  upon  individuals,  the  great  injury  is  done  in  (blacken 
ing  the  good  name  of  the  American  people.  It  should  not 
be  left  to  a  private  citizen  to  sue  Mr.  Puilitzer  for  libel. 
He  should  be  prosecuted  for  libel  by  the  Government  au 
thorities.  In.  point  of  encouragement  of  iniquity,  in  point 
of  infamy,  of  wrongdoing,  there  is  nothing  to  choose  be 
tween  a  public  servant  who  betrays  his  trust,  a  public  ser 
vant  who  is  guilty  off  blackmail  or  theft  or  financial  dis 
honesty  of  any  kind  and  a  man  guilty  as  Mr.  Joseph  Pulit 
zer  has  been  guilty  in  this  instance.  It  is  therefore  a  high 
national  duty  to  bring  to  justice  this  vilifier  of  the  Ameri 
can  people,  this  man  who  wantonly  and  wickedly  and  with 
out  one  shadow  of  justification  seeks  to  blacken  the  char- 
,acter  of  reputable  private  citizens,  and  to  convict  the  Gov 
ernment  of  his  own  country  in  the  eyes  of  the  civilized 
world  of  wrongdoing  of  the  basest  and  foulest  kind,  when 
he  has  not  one  shadow  of  justification  of  any  sort  or  de 
scription  for  the  charge  he  has  made.  The  Attorney-Gen 
eral  has  under  consideration  the  form  in  which  the  pro 
ceedings  against  Mr.  Pulitzer  shall  be  brought. 

Here  we  have  reincarnated  the  very  spirit  of  the 
Sedition  law — the  theory  that  strictures  upon  the  con 
duct  of  public  officials  are  not  to  be  treated  as  mere 
libels  upon  individuals,  but  constitute  a  sort  of  treason, 
against  which  all  the  "colossal  power"  of  the  Federal 
Government  should  be  wielded. 

In  the  performance  of  their  "high  nationality"  the 
Government  authorities  sought  "to  bring  to  justice  thifl 
vilifier  of  the  American  people"  who  had  sought  "to 
convict  the  Government  of  his  own  country  in  the  eyes 
of  the  civilized  world  of  wrongdoing  of  the  basest  and 


54 

foulest  kind"  through  the  instrumentality  of  this  indict 
ment,  charging,  not  a  libel  on  the  Government,  but 
merely  the  defamation  of  certain  individuals.  But  this 
is  only  the  form  of  the  prosecution.  It  is  in  substance 
and  in  fact  an  indictment  for  the  publication  of  what  in 
1708  would  have  been  alleged,  in  terms,  to  constitute  a 
seditious  libel,  tending  to  stir  up  discontent  and  disaffec 
tion  and  to  bring  the  Government  into  contempt.  In 
deed,  this  is  expressly  charged,  namely,  that  it  was  the 
defendant's  purpose  "to  stir  up  disorder  among  the 
people."  The  language  of  the  Sedition  act  was  "to  stir 
up  sedition." 

1  he  First  Prosecution  in  85   Years. 

So  much  for  the  spirit  and  purpose  of  the  act  of  July 
7, 1898.  What  answer  does  the  Government  make  io  all 
of  my  contentions  ?  I  say  that  this  is  the  first  prosecu 
tion  under  the  statute  since  its  enactment  eighty-five 
years  ago,  and  that  the  acquiescence  of  all  men  in  th*} 
negative  of  the  proposition  shows  that  no  such  jurisdic 
tion  exists.  The  Government  replies,  "What  of  it  ?  We 
have  discovered  a  new  jurisdiction;  it  is  better  late  than 
never." 

I  say  "your  construction  of  the  act  leads  to  injustice, 
oppression  and  absurd  consequences."  The  Government 
replies:  "When  did  criminals  not  complain  of  the  in 
convenience  of  prosecutions  ?  *  What  rogue  e'er  felt  the 
halter  draw  with  good  opinion  of  the  law  f  ' 

I  say  that  the  history  of  the  passage  of  the  act  through 
Congress  indicates  that  it  was  not  intended  to  confer 
jurisdiction  upon  the  Federal  courts.  To  which  the 
Government  replies:  "Why,  there  is  the  plain  letter  of 
the  law." 

I  say  that  the  whole  life  and  history  of  the  country  is 
at  variance  with  the  Government's  contention,  to  which 
the  reply  is  "7/0  scriptum  est" — if  it  is  within  the  letter 
of  the  statute  it  must  be  within  its  spirit. 

I  now  say,  as  my  second  proposition,  that  the  case  is 
not  even  within  the  letter  of  the  statute,  because  the 
acts  charged  as  the  basis  of  this  prosecution,  to  wit,  the 
circulation  of  twenty-nine  copies  of  the  paper  in  West 
Point  and  of  one  copy  in  the  Post-Office  Building  are 
not  acta  which  are  punishable  under  the  State  law. 


*8 

The  Government  and  I  agree  that  this  act  of  July  7, 
1898,  must  be  treated  as  if  the  State  law  were  actually 
incorporated  in  it. 

Mr.  Justice  Holmes:  There  is  one  point  upon  which 
I  would  like  to  be  assured  there  is  an  agreement  between 
you.  If  the  other  side  agrees  to  it  I  have  nothing  to  say. 
It  is  possible  to  interpret  these  words  "when  an  offense 
is  committed"  in  a  somewhat  different  sense.  I  quite 
appreciate  the  suggestion  that  you  must  interpret  them 
as  meaning  when  an  act  is  done  which  would  be  an  of 
fense  by  the  criminal  law  of  the  State  within  which  the 
reservation  is  situated,  if  those  laws  extended  over  that 
territory.  But  would  it  not  be  possible  to  say  that  the 
words  "When  an  offense  is  committed"  refer  to  the  well- 
known  categories  of  the  common  law,  without  reference 
to  the  law  of  the  State — that  when  anything  is  done 
which,  by  common  understanding  or  common  law,  is  an 
offense,  then  it  may  be  punished  if  you  find  in  the  ma 
chinery  of  the  State  law  anything  that  will  punish  it? 

Mr.  Nicoll:  That  is  not  our  view  of  the  act.  I  do  not 
say  that  such  a  view  might  not  be  taken,  but  I  am  sure 
it  is  not  the  correct  one.  For  this  Court  decided  in  the 
case  of  United  States  v.  Franklin,  216,  U.  S.,  559,  which 
was  referred  to  by  the  learned  Assistant  Attorney-Gen 
eral,  that  by  this  act  Congress  adopted  for  the  govern 
ment  of  the  ceded  places  the  criminal  laws  then  existing 
in  the  several  States  within  which  such  places  were  situ 
ated,  in  so  far  as  said  laws  were  not  displaced  by  specific 
acts  of  Congress. 

Mr.  Mcoll  (continuing):    The  act  of  July  7,  1898, 
punishes— as,  in  fact,  it  could  punish— only  an  "offense 
committed"  in  Federal  territory.    What  is  such  an  of 
fense  so  committed?    As  I  have  said,  the  criminal  law 
of  the  State  in  which  the  Federal  territory  is  situate, 
is  made  the  basis  of  criminality  under  the  act  of  Co: 
Kress— the  test  whether  or  not  a  given  act  is  of  a  char 
acter  sought  to  be  punished  by  the  latter.   What  M  no- 
criminal  when  done  within  the  jurisdiction  of  the  State 
is  not  criminal  when  done  within  the  jurisdiction  of  1 
Federal  Government. 

It  is  equallv  clear  that  the  act  or  acts  done  within 
Federal  jurisdiction  must  be  8uch  that  they  would,  I 


and  of  themselves,  if  done  within  the  jurisdiction  of  the 
State,  constitute  a  crime  against  the  laws  of  the  State. 
There  must  be  an  "offense  committed"  within  the  Fed" 
eral  territory.  This  imports,  of  course,  a  completely 
consummated  breach  of  the  criminal  law.  If  it  were  not 
that,  to  punish  it  would  be  to  punish  what  was  not  a 
crime. 

The  New  York  State  L,aw  of  Criminal  Libel. 

This  brings  us  at  once  to  a  consideration  of  the  New* 
York  law  of  criminal  libel.  When  the  act  of  Congress 
of  July  7,  1898,  took  effect,  the  criminal  law  of  New 
York,  both  substantive  and  procedural,  had  been  codi 
fied  for  seventeen  years,  and  was  to  be  found  in  the  New 
York  Penal  Code  and  the  Code  of  Criminal  Procedure. 

The  sections  of  the  Penal  Code  relating  to  the  subject 
are  to  be  found  in  the  Government's  brief  and  our  own, 
but  we  have  added  extracts  from  the  Code  of  Criminal 
Procedure,  because  the  whole  law  of  criminal  libel  in 
the  State  of  New  York  is  to  be  found  in  both  Codes,  and 
not  in  the  Penal  Code  alone. 

Section  243  of  the  Penal  Code  provides: 

"A  person  who  publishes  a  libel  is  guilty  of  a  misde 
meanor." 

It  is  the  publication  of  the  libel  which  is  here  made  a 
crime,  not  the  publication  in  this  or  that  place  or  to  this 
or  that  person.  The  act  is  treated  as  one  and  indivisible. 

Section  245  of  the  same  Code  provides: 

To  sustain  a  charge  of  publishing  a  libel  it  is  not  neces 
sary  that  the  matter  complained  of  should  have  been  seen 
'by  another.  It  is  enough  that  the  defendant  knowingly 
displayed  it,  or  tparted  with  its  immediate  custody,  under 
circumstances  'which  exposed  it  to  be  seen  or  understood 
by  another  person  than  himself. 

As  it  is  the  publication  of  the  libel  which  is  made 
criminal,  the  crime  is  necessarily  complete  when  onco 
the  libel  is  displayed,  or  its  custody  parted  with,  under 
the  circumstances  specified. 

Sections  24&  and  250  relate  to  the  place  where  the 
offense  of  publishing  a  libel  shall  be  prosecuted.  They 
provide  that  in  the  case  of  a  libel  upon  a  resident  it 
•hall  be  prosecuted  either  in  the  county  where  the  per- 


67 

son  alleged  to  be  libelled  resides,  or  in  the  county  where 
the  paper  is  published.  If  an  indictment  is  found  in  the 
former  county  it  may  be  removed  to  the  county  of  pub 
lication  upon  giving  a  bond.  In  the  case  of  a  libel  upon 
a  non-resident,  the  prosecution  shall  be  in  the  county  in 
which  the  paper,  on  its  face,  purports  to  be  published, 
or,  if  it  doesn't  so  indicate,  in  any  county  in  which  it 
was  circulated. 
Finally,  section  251  provides: 

A  person  cannot  .be  indicted  or  tried  for  the  publication 
of  the  same  libel,  against  the  same  person,  in  more  than 
one  county. 

These  are  all  the  provisions  found  in  the  Penal  Code. 

Turning  now  to  the  Code  of  Criminal  Procedure,  sec 
tion  138,  we  find  similar  provisions  as  to  the  place  for 
the  prosecution  of  the  libol. 

Section  139  provides: 

When  an  act  charged  as  a  crime  is  within  the  jurisdic 
tion  of  another  State,  Territory  or  county,  as  well  as 
within  the  jurisdiction  of  this  State,  a  conviction  or  ac 
quittal  thereof  in  the  former  is  a  bar  to  a  prosecution  or 
indictment  therefor  in  this  State. 

And  section  140  provides: 

When  a  crime  is  within  the  jurisdiction  of  two  or  more 
counties  of  this  State,  a  conviction  or  acquittal  thereof  In 
one  county  is  a  bar  to  a  prosecution  or  indictment  thereof 
in  another. 

What  is  the  policy  of  the  New  York  law  of  criminal 
libel  as  disclosed  by  the  sections  which  I  have  just  read  2 
What  does  it  punish  ?  How  does  it  treat  the  acts  consti 
tuting  the  offense?  What  does  it  make  punishable? 
What  is  made  criminal  is  the  publication  of  a  libel,  and 
a  single  libel  can  be  punished  but  once.  Since  the  act 
of  publication  is  not  confined  to  one  spot,  the  crime  is, 
in  its  nature,  capable  of  punishment  in  more  than  one 
place ;  and  this  principle  finds  recognition  in  the  various 
provisions  determining  the  county  in  which  the  prosecu 
tion  shall  be  had.  It  is  none  the  less  a  single  crime,  pun 
ishable  but  once;  and  where  it  has  been  once  punished, 
whether  in  the  State  of  New  York  or  in  some  other 
State,  Territory  or  county,  it  cannot  be  again  punished  in 
the  former.  Here  is  the  completest  refutation  of  the 
theory  of  the  divisibility  of  the  publication  and  the  mul- 


5* 

tifariousness  of  the  crime,  upon  which  the  whole  prose 
cution  rests.  Granting  that  Congress  might  constitu 
tionally  provide  a  separate  punishment  for  the  distinct- 
act  of  circulating  libellous  matter  in  Federal  territory, 
it  has  not  done  so.  It  adopts  the  New  York  law;  and 
that  law  provides,  in  the  case  of  each  article,  one  pun 
ishment  for  the  entire  series  of  acts  connoted  by  the 
term  "publication/'  and  makes  that  punishment  exclu 
sive  of  any  other.  It  also  fixes  a  place  where  the  punish 
ment  shall  be  inflicted,  namely,  the  county  in  which  the 
libel  is  published,  or  the  county  where  the  libelled  per 
son  resides;  or,  under  special  circumstances,  any  other 
county  in  which  the  paper  was  circulated. 

It  is  thus  clear  that  what  is  punished  under  the  State 
law  is  the  entire  publication ;  and  that  it  is  punished  at 
a  place  and  in  a  manner  necessarily  exclusive  of  the 
Federal  authorities. 

The  effect  of  the  adoption  by  Congress  of  the  State 
law  is  that,  for  the  purposes  of  this  case,  the  State  stat 
utes  are  in  force  throughout  the  entire  territorial  limits 
of  the  State.  But  if,  in  fact,  the  State  law  of  criminal 
libel  had  been  in  force  throughout  the  whole  of  New 
YV>rk  and  Orange  Counties,  it  is  perfectly  evident  that 
it  would  not  have  made  one  crime,  or  two,  out  of  the 
publication  of  these  thirty  copies.  It  would  not  have 
punished  the  particular  acts  in  question  at  all,  except  as 
they  constituted  a  part  or  incident  of  the  entire  publica 
tion  of  the  paper  on  the  day  in  question.  In  punishing 
the  Whole  it  may  be  said  to  punish  the  parts;  but  it 
attempts  to  punish  the  parts  only  by  and  through  pun 
ishment  of  the  whole.  Concededly,  however,  the  Fed 
eral  Government  has  no  power  to  punish  the  whole  of 
fense,  and  it  is  not  attempting  to  do  so.  In  proceeding 
to  punish  the  parts  as  complete  and  as  independent 
crimes  it  is  attempting  to  construct  a  crime  out  of  whar, 
is,  under  the  State  law,  insufficient  for  that  purpose.  If 
the  act  of  Congress  permits  this,  then  it  necessarily 
makes  criminal  what  the  State  law  does  not  make  crimi 
nal,  in  spite  of  the  expressed  intention  to  the  contrary. 

Counter  to  the  Whole  Policy  of  the  State. 

To  sum  the  matter  up,  I  say  that  this  contention  of 
the  Government  runs  counter  to  the  whole  policy  of  the 


59 

State  of  New  York  relating  to  criminal  libel.  It  rests 
upon  a  proposition  which  is  ignored  by  the  statutes  of 
that  State.  While  the  Government  is  here  endeavor 
ing  to  apply  the  law  of  the  State  of  New  York  to  the 
acts  of  circulation  at  West  Point  and  in  the  Post-Office 
Building,  it  is  putting  a  construction  upon  the  New 
Yrork  statute,  which  is  directly  at  variance  with  its  policy. 
For  the  prosecution  is  based  upon  a  small  and  incidental 
part  of  the  circulation.  Whereas  under  the  New  York 
law  the  publication  is  treated  as  one  indivisible  act. 

Moreover,  the  contention  of  the  Government  leads  to 
a  double  punishment,  where  the  State  statute  provides 
for  but  one.  The  law  of  New  York  treats  the  publica 
tion  of  a  libel  as  an  indivisible  act,  constituting  a  single 
crime;  and  a  conviction  or  acquittal  of  this  crime  "with 
in  the  jurisdiction  of  another  State,  Territory  or 
country"  is  a  bar  to  a  prosecution  therefor  in  New  York. 
This  language  does  not  embrace  a  prosecution  in  a  place 
ceded  to  the  Federal  Government  and  under  its  exclu 
sive  jurisdiction.  So  that  although  a  conviction  or  ac 
quittal  in  any  other  State  or  Territory  of  this  country, 
or  in  any  foreign  country,  would  prevent  a  prosecution 
in  New  York,  a  prosecution,  or  any  number  of  prosecu 
tions,  in  places  within  the  jurisdiction  of  the  Federal 
Government  would  still  leave  the  accused  open  to  an- 
othjer  indictment  in  New  York.  Plainly,  this  was  never 
intended. 

I  may  say  also  that  tho  circulation  of  even  these  thirty 
copies — twenty-nine  in  West  Point  and  one  in  the  Poat- 
Office  Building— was  punishable  in.  the  State  of  New 
York,  for  the  papers  were  put  in  circulation  and  circu 
lated  from  the  defendant's  printing  office  throughout 
the  United  States.  When  the  defendant  delivered  these 
copies  of  the  paper  in  the  jurisdiction  of  the  State  of 
New  York  to  an  agent  or  messenger,  with  the  intent 
that  they  be  delivered  to  the  purchaser,  the  offense  of 
publishing  a  libel  was  committed  and  was  punishable  i 
the  State  of  New  York. 

So    whether  we  consider  this  prosecution  from  thr 
standpoint  of  the  spirit  of  the  act  of  1898;  whether  WP 
construe  that  act  in  the  light  of  what  occurred,  and  1 
situation  as  it  was  presented  to  Congress  in  1825,  o 


00 

whether  we  take  the  letter  of  the  act  itself,  I  say  that 
this  prosecution  is  unwarranted  and  totally  unsupported 
by  any  proper  construction  of  the  act. 

Prosecution  Belongs  to  a  Aew  Dispensation. 

As  a  matter  of  fact,  the  prosecution  is  premature,  it 
was  born  before  its  time,  it  belongs  to  that  new  dispen 
sation  when  the  Federal  Government  shall  have  taken 
to  itself  all  power  and  all  authority,  and  the  States  shall 
have  been  reduced  to  mere  geographical  divisions  of  the 
national  domain;  when  the  Federal  tribunals  shall  no 
longer  decide  cases  in  accordance  with  precedent  and 
authority  and  the  law  of  the  land,  but  in  accordance 
with  the  need  and  spirit  of  the  times,  as  they  may  be  in 
terpreted  by  some  great  steward  of  the  public  welfare. 

Mr.  McReynolds  Closes  for  the  Government. 

Mr.  Mclxeynolds  in  closing  for  the  Government  said: 
The  question  for  decision  here  is  a  question  of  law, 
not  a  question  of  policy.  Libel  was  not  excluded  from 
the  Story  act  in  1825.  Its  terms  were  broad  enough  to 
include  it.  It  was  followed  by  the  act  of  1866,  and  still 
libel  was  not  excluded  from  it.  Its  terms  and  words 
were  wide  enough  to  include  it.  It  went  into  the  compi 
lation  of  1877  in  the  same  form.  The  act  of  1898  -was 
passed,  and  still  libel  was  within  the  words  of  the  act, 
and  finally  the  act  of  1909,  passed  in  March  of  that 
year,  about  three  months  after  this  message  from  the 
President  of  the  United  States  calling  attention  to  this 
very  situation.  That  act  is  broad  enough  in  its  terms  to 
include  libel. 

ISTow,  if  there  be  anything  in  the  history  of  this  act 
through  the  eighty-five  years  of  its  existence,  does  it  not 
prove  conclusively  that  it  was  the  purpose  of  Congress  to 
exclude  nothing  from  the  words  of  the  act,  and  that 
they  were  intended  to  mean  just  what  they  did  mean  at 
the  common  law  ?  Is  it  conceivable  that  through  all  these 
years  Congress  should  have  done  this  thing  with  its  eyes 
wide  open,  and  especially  is  it  conceivable  that  it  should 
have  passed  the  act  of  1909  after  this  very  case  was 
under  consideration,  with  terms  broad  enough  to  in 
clude  it  ? 


si 

Mr.  Justice  Day:    The  act  of  1909  ? 

Mr.  McKeynolds :   Yes,  sir. 

Mr.  Justice  Bay:    That  is  the  codification  of  the  law  * 

Mr.  McReynolds:  Yes,  sir.  It  is  the  act  of  March  4, 
1909.  Bear  in  mind  that  the  President  of  the  United 
States  had  sent  that  message  to  Congress  in  December 
preceding  calling  attention  to  this  very  libellous  situa 
tion,  yet  in  the  face  of  that  Congress  passed  it.  What 
could  be  plainer?  A  man  publishing  a  libel  in  the  State 
of  New  York  becomes  guilty  of  a  misdemeanor.  By 
publishing  that  same  libel  in  West  Point  he  becomes 
guilty  of  a  misdemeanor.  It  is  not  the  same  offense,  of 
course.  One  is  an  offense  against  the  laws  of  New  York. 

Mr.  Justice  Harlan :   What  statute  is  that  ? 

Mr.  McEeynolds:  Page  1,477  of  the  1909  supple 
ment  or  compiled  statutes. 

Now,  what  could  be  plainer?  Is  it  possible  that  Jus 
tice  Story  did  not  see  this  might  happen  ?  Is  it  possible 
that  all  of  the  other  great  lawyers  who  have  spoken 
about  it  had  not  seen  this  might  happen  ?  Is  it  possible 
that  during  these  eighty  "five  years  nobody,  until  my 
learned  friend  on  the  other  side  began  to  investigate  it, 
ever  saw  it  was  not  the  purpose  to  include  libel  within 
this  statute  ?  But  beyond  all  that,  why  should  not  libel 
be  included  in  the  statute?  Wliat  reason  is  there  that 
a  man  should  be  allowed  the  immunity  of  circulating 
libel  in  the  District,  of  Columbia  contrary  to  the  peace 
and  good  order  of  this  vicinity? 

The  Same  Offense  Punishfd  Twice. 

Mr.  Justice  Day:  In  the  District  of  Columbia  could 
not  the  offense  be  reached  by  one  of  the  statutes  of  the 
District  ? 

Mr.  McEeynolds:  Certainly,  and  that  is  just  what 
1hey  are  undertaking  to  do  here.  This  is  a  statute  of 
the  United  States— 

Mr.  Justice  Day:  It  is  not  a  statute  of  the  district  of 
West  Point? 

Mr.  McKeynolds:    No;  it  is  a  statute  of  the  Umt4 
States  applicable  to  West  Point,  just  as  much  as  thf 
statutes  of  the  United  States  arc  applicable  to  the  Dis 
trict  of  Columbia. 


62 

Mr.  Justice  Day:  I  simply  desire  to  call  your  atten 
tion  to  the  situation  where  the  same  offense  might  be 
punished  twice. 

Mr.  McKeynolds :  I  was  calling  attention  to  policy, 
not  to  the  present  condition  of  the  law.  Why  should 
not  the  people  of  West  Point  be  protected  from  the  bad 
effects  of  a  libel  circulated  within  that  territory  ? 

Mr.  Justice  Lurton:  Was  the  paper  received  by  any 
person  made  the  subject  of  this  libel? 

Mr.  McReynolds:  Not  so  far  as  it  appears.  The  in 
dictment  upon  its  face  does  not  show  where  those  par 
ties  resided. 

Mr.  Justice  Harlan:    What  parties? 

Mr.  McEeynolds:  The  parties  libelled — Mr.  Roose 
velt,  Mr.  Taft,  Mr.  Robinson  and  Mr.  Charles  Taft  of 
Cincinnati.  Now,  everybody  knows  a  publication  in  the 
law  ,of  libel  is  not  confined  to  the  mere  printing  of  the 
thing.  We  'all  know  that  under  the  well  established 
doctrines  the  (Crime  of  libel  is  committed  every  time  the 
defamatory  written  thing  'passes  from  one  hand  to  an 
other.  A  man  by  publishing  a  newspaper  in  the  city  of 
New  York  and  sending  a  copy  into  every  county  in 
every  State  of  the  United  States  commits  a  separate 
arid  distinct  offense  in  every  one  of  those  counties. 

Mr.  Justice  White:  You  mean  by  the  law  of  "New 
York. 

Mr.  McReynolds:    By  the  law  of  New  York. 

Mr.  Justice  White:  Then,  as  I  understand  it,  the 
greatest  difference  between  yourself  and  counsel  on  the 
other  side,  as  I  see  it,  is  your  difference  -as  to  what  the 
law  of  New  York  is. 

Mr.  McReynolds :    I  differ  from  him  absolutely. 

Mr.  Justice  White:  I  say  that  is  the  greatest  differ- 
once  between  you. 

Mr.  McRevnolds:    Perhaps  so,  if  there  be  degrees. 

Mr.  Justice  White:  Do  you  say  it  wa*  intended  to 
adopt  the  laws  »of  New  York? 

Mr.  McReynolds:   I  do. 

Mr.  Justice  White:  And  make  the  laws  of  New  York 
applicable  and  not  the  common  law? 

Mr.  McReynolds:    Yes,  sir,  I  do. 


Mr.  Justice  White:  The  precise  prorigions  of  the 
laws  of  New  York  ? 

Mr.  McReynolds:    Yes,  sir. 

Mr.  Justice  White:  That  is  the  contention  of  the 
other  side,  as  I  understand  it. 

Claims  Separate  and  Distinct  Offenses. 

Mr.  McReynolds:  You  have  not  heard  any  discussion 
here  from  niy  friend  on  the  other  side  about  the  effect 
of  circulating  in  the  State  of  New  York  a  libel  actually 
printed  in  the  State  of  New  Jersey,  and  I  undertake  to 
say  that  under  the  law  of  New  York  every  copy  of  that 
paper  published  in  the  State  of  New  Jersey  and  circu 
lated  in  the  State  of  New  York  constitutes  a  separate 
and  distinct  offense. 

Mr.  Justice  White:  You  mean  printed  instead  of 
published? 

Mr.  McReynolds:  No.  I  do  not  me*n  the  printing 
absolutely  in  there. 

Mr.  Justice  White:    In  New  Jersey? 

Mr.  McReynolds:  Oh,  if  it  is  printed  in  New  Jersey, 
yes,  T  beg  your  pardon.  If  the  paper  is  printed  in  New 
ark,  New  Jersey,  and  copies  are  sent  into  the  State  of 
New  York,  the  publisher,  the  owner,  if  you  please,  the 
man  who  is  responsible  for  the  printing  and  circulating 
of  that  paper,  is  a  criminal  in  every  county  in  the  State 
of  New  York  where  that  paper  is  circulated. 

Mr.  Justice  Day :    Is  that  under  section  250  ? 

Mr.  McReynolds:  Tinder  section  243,  where  a  person 
who  publishes  a  libel  is  guilty  of  a  misdemeanor. 

Mr.  Justice  Day:  Section  250  covers  indictment  for 
libel  published  against  a  non-resident. 

Mr.  McReynolds:  That  is  for  an  indictment  \vfhere 
the  paper  is  published  inside  of  the  State  of  New  York. 
There  is  a  distinction  made  in  the  State  of  New  York 
Between  publication  inside  the  State  of  New  York  and 
publications  made  outside  of  the  State,  or  printing-,  T 
mean,  outside  of  the  State.  The  newspaper  printed  in- 
n-de  of  the  State  of  New  York  has  certain  privileges 
||rhich  a  newspaper  printed  outside  the  State  of  New 

ork  has  not  got.  As  to  the  newspaper  printed  outside 
i>f  the  State  of  New  York  and  circulated  in  the  State 


64 

of  New  York,  he  is  guilty  of  a  misdemeanor  wherever 
a  copy  is  delivered. 

Mr.  Justice  White:  Now,  then,  you  say  by  the  law 
of  New  York,  where  a  paper  is  printed  in  New  York 
it  stands  in  a  better  position? 

Mr.  McReynolds:    It  does. 

Mr.  Justice  White:  If  this  statute  adopts  the  law  of 
New  York,  why  does  it  not  give  the  same  advantage 
to  the  paper  in  New  York  as  it  would  give  if  it  were 
printed  there? 

Mr.  McReynolds:  If  you  grant  that  you  have  not 
advanced. 

Mr.  Justice  White:  I  do  not  say  I  have,  but  I  am 
trying  to. 

Mr.  McReynolds:  Even  if  you  grant  that,  these  pro 
visions  are  in  reference  to  the  places  where  the  libel 
may  be  prosecuted  and  not  as  to  the  place  where  the 
crime  may  be  committed. 

Mr.  Justice  Day:  This  indictment  does  not  show 
upon  its  face  whether  these  parties  were  residents  of 
the  State  of  New  York  or  not. 

Mr.  McReynolds:    1  do  not  think  it  does. 

Mr.  Justice  Bay:  Does  it  appear  in  the  motion  to 
quash  ? 

Mr.  McReynolds:    No,  I  think  not;  I  do  not  recall  it. 

Mr.  Nicoll:  I  think  it  shows  as  to  Mr.  Cromwell  and 
one  other,  but  not  as  to  the  majority  of  the  individuals. 

Mr.  McReynolds:  I  do  not  recall  that  it  showed  it  at 
all. 

Mr.  Justice  Lurton:  Did  I  understand  you  to  say 
there  is  no  averment  in  this  indictment  as  to  the  resi 
dence  of  any  of  the  libelled  parties  ? 

Mr.  McReynolds:    I  do  not  recall  it. 

Mr.  Nicoll :  There  is  no  averment  as  to  residence  in 
the  indictment. 

Mr.  Justice  Lurton:  Which  of  these  two  sections, 
then,  does  this  case  come  under,  sections  249  or  250? 

Mr.  McReynolds:  This  indictment  does  not  show  on 
its  face  where  these  people  were.  It  was  not  demurred 
to,  and  if  that  question  was  desired  to  be  raised  it  should 
have  been  done  by  some  proper  pleading. 

Mr.  Justice  Lurton :    The  indictment  was  quashed  ? 


fttf 

Mr.  McKeynolds:  It  \\\as  quashed  because  the  Court 
held  in  broad  terms  this  act  of  1898  did  not  apply  to 
libel  committed  or  circulated  by  a  publication  in  West 
Point. 

Mr.  Justice  Lurton:  This  Court  would  not  be  held 
down  to  that  ground  ? 

Mr.  McKeynolds:  Not  at  all.  Now,  I  say  a  libel  pub 
lished  anywhere  by  circulating  the  paper  containing  if 
in  the  State  of  New  York  is  a  misdemeanor,  and  it  is 
not  necessary  to  allege  in  the  indictment  whether  A 
party  is  a  resident  or  is  not  a  resident.  If  the  parties 
by  way  of  defense  want  to  bring  that  forward,  it  is 
incumbent  upon  them  to  do  ,so. 

Mr.  Justice  "White :  Let  me  see  if  I  understand  your 
position.  I  do  not  just  get  it,  and  I  would  like  to  have 
it  straight  in  my  head.  As  I  understand  this  proceed 
ing,  the  law  of  New  York  says  if  a  libel  is  printed  in 
the  State  of  New  York  then  it  can  be  only  prosecuted 
in  two  places — where  it  is  printed  or  where,  if  a  man 
is  a  resident  of  New  York,  he  resides. 

Mr.  McKeynolds:   Yes,  sir. 

Mr.  Justice  .White:  Here  is  a  libel  printed  in  New 
York.  You  do  not  show  these  people  reside  at  West 
Point,  and  therefore  under  the  lav.  of  New  York,  if 
you  apply  the  law  of  New  York  totidem  verbis,  here  is 
a  paper  printed  in  Now  York  which  could  not,  under  the 
law  of  New  York,  be  prosecuted  in  New  York  at  all. 

Mr.  McKeynolds:   Yes,  sir. 

Mr.  Justice  White:  And  then  you  go  on  and  by  anal 
ogy  say,  "But  the  New  York  law  prevails  if  a  paper  i* 
printed  in  New  Jersey."  If  a  paper  is  printed  in  New 
Jersey  and  circulated  in  New  York  it  can  be  prosecuted 
anywhere  in  New  York.  JVhat  has  that  provision  to 
do^with  the  case,  except  you  reason  by  remote  analogy 
with  a  paper  printed  in  New  York?  How  do  you  conio 
to  adopt  the  law  of  New  York  as  to  a  paper  printed  in 
New  Jersey?  That  is  the  trouble  in  my  mind.  I  may 
be  confused  about  it. 

Mr.  McKeynolds:  I  will  see  if  I  can  make  mysell 
intelligible  to  Your  Honor.  In  the  first  place,  this  v. 
not  a  prosecution  in  New  York.  This  is  an  attempt 
to  punish  what  is  made  an  offense  in  New  York  in 


Federal  courts.  .Therefore  the  provision  of  the  N«w 
York  Code,  which  merely  asserts  the  place  of  prosecu 
tion,  has  no  effect. 

Mr.  Justice  White:  I  understand  you  now.  There 
fore  your  answer  that  there  was  no  fundamental  differ 
ence  between  yourself  and  your  adversaries  as  to  the 
statute  disappears. 

Mr.  McReynolds:  These  provisions  in  reference  to 
the  place  of  prosecution  in  New  York  of  course  do  not 
apply  to  West  Point.  You  cannot  prosecute  in  the  Federal 
courts  an  offense  which  was  committed  inside  the  State  of 
New  York. 

Mr.  Justice  White:    I  see  your  point. 

Mr.  McReynolds :  But  you  can  prosecute  an  offense 
made  such  by  the  statute  of  New  York  and  committed 
inside  of  West  Point. 

Mr.  Justice  Day:  Notwithstanding  there  are  limita 
tions  when  the  matter  is  published  in  the  State  of  New 
York? 

Mr.  McReynolds:    Certainly. 

Mr.  Justice  Day:    That  is  your  argument? 

Mr.  McReynolds:  Certainly.  I  can  see  no  reason 
why  you  cannot.  Otherwise  you  could  not  punish  them 
at  all. 

Mr.  Justice  Day :  In  other  words,  these  provisions  as 
to  the  place  of  prosecution  have  no  application  to  this 
situation  ? 

Mr.  McReynolds :    Why,  of  course  not. 

Mr.  Justice  Day:    That  is  your  argument? 

Mr.  Justice  Holmes:  Your  argument  depends  upon 
whether  that  provision  about  prosecuting  is  merely  a 
matter  of  procedure  in  the  act  and  not  a  matter  of  sub 
stantive  law. 

Mr.  McReynolds:    Certainly. 

Mr.  Justice  Holmes:  Whereas  the  contention  of  the 
other  side  is  that  amounts  really  to  a  limitation  of  lia 
bility,  it  means  to  say  that  in  view  of  the  possible  enor 
mous  liability  that  might  be  imposed  upon  a  newspaper 
there  should  not  be  any  such  liability,  and  that  it  shall 
be  liable  only  where  the  paper  is  delivered  from  the  printer 
or  the  office. 

Mr.  McReynolds:   Exactly. 


Mr.  Justice  Holmes:  If  that  be  a  principle  of  sub 
stantive  law  and  not  merely  a  matter  of  procedure,  would 
you  not  have  to  admit  that  it  applied  to  West  Point  ? 

Mr.  McReynolds:  I  think  so.  1  think  we  would  be 
out  of  court,  but  I  do  not  think  any  such  construction 
could  be  put  upon  it.  I  attempted  to  show  this  mere 
possibility  of  subjecting  a  man  to  many  prosecutions 
for  merely  one  issue  of  a  paper  could  have  nothing  to 
do  with  the  case  because  he  was  already  subject  to 
prosecution  in  every  county  of  the  United  States  where 
a  copy  of  that  paper  circulates. 


{DECISION  OF  TBE  UNITED  STATES  SUPREME  COURT.] 


Supreme  Court  of  the  United  States. 


No.  541. — OCTOBER   TERM,    1910. 


The  United  States,  Plaintiff  in  Error,  j In  €rror  to  the  Circuit 

Court     of  the  United 
vs.  L    States  for  the  South- 

Press  Publishing  Company.         j  H*tlM   * 

[January  3,  191L] 


On  .March  4,  1909,  upon  the  assumed  authority  of 
the  second  section  of  an  act  of  Congress  approved  July 
7,  1898,  (ch.  576,  30  Stat.  717),  a  grand  jury  in  the 
Circuit  Court  of  the  United  States  for  the  Southern 
District  of  New  York  found  a  true  bill  against  the 
Press  Publishing  Company,  charging  the  commission 
of  alleged  criminal  libels,  set  out  in  an  indictment  com 
posed  of  fourteen  counts.  The  asserted  libels  were  con 
tained  in  six  issues  of  The  World,  a  newspaper  printed 
in  the  city  of  New  York,  of  which  newspaper  the  de 
fendant  in  error,  a  New  York  corporation,  was  pub 
lisher.  The  first  seven  counts  dealt  with  the  publication 
of  the  libels  by  circulating  copies  of  the  newspaper 
containing  the  same  within  the  reservation  and  military 
post  in  Orange  County,  N.  Y.,  known  as  West  Point- 
The  remaining  counts  dealt  with  the  publication  of 
each  of  the  libels  by  the  delivery  of  a  copy  of  the  issue 
of  The  World  containing  the  same  to  a  post  office  in 
spector  at  his  office  in  the  Post  Office  Building  in  the 


70 

city  of  New  York.  Both  West  Point  and  the  Post 
Office  Building  were  averred  to  be  places  within  the 
exclusive  jurisdiction  of  the  United  States.  Those  who 
were  alleged  in  each  count  to  have  been  criminally 
libelled  were  at  the  time  of  the  publications  the  Presi 
dent  of  the  United  States,  the  Secretary  of  War  and 
certain  private  individuals.  The  alleged  libelous  articles 
related  to  the  purchase  by  the  United  States  of  the 
Panama  Canal.  We  need  not  state  the  contents  of  the 
articles,  since  in  the  view  taken  of  the  case  we  shall  be 
only  called  upon  to  determine  \vtliether,  conceding  the 
publication  to  have  been  libelous  as  charged  in  the  in 
dictment,  they  constituted  offenses  against  the  United 
States  within  the  purview  of  the  act  of  1898. 

The  case  went  to  trial  upon  a  plea  of  not  guilty.  The 
circulation  of  the  newspapers  containing  the  alleged 
libels  on  the  military  reservation  and  their  delivery  to 
the  inspector  at  the  post  office  as  charged  in  the  indict 
ment  was  admitted  by  the  defendant.  The  Govern 
ment  on  the  other  hand  admitted  that  all  of  the  issues 
of  The  World  newspaper  referred  to  in  the  indictment 
were  printed  in  the  defendant's  printing  establishment 
in  the  city  of  New  York  and  were  circulated  there 
from. 

At  the  close  of  the  evidence  introduced  by  the  Gov 
ernment  the  defendant  moved  to  quash  the  indictment 
or  to  instruct  a  verdict  of  acquittal,  upon  the  follow 
ing  grounds: 

"First.  The  court  has  no  jurisdiction  in  this  case  "because 
there  is  no  statute  of  the  United  States  authorizing  the  prose 
cution. 

"Second.  The  act  of  1898  does  not  apply  to  the  case  as  dis 
closed  by  the  evidence. 

"Third.  If  construed  so  as  to  cover  the  acts  shown  toy  the 
evidence  the  act  is  unconstitutional. 

"Fourth.  The  offense,  if  any,  was  committed  wholly  within 
the  Jurisdiction  of  the  State  of  New  York  and  was  punishable 
there. 

"Fifth.  The  defendant  feeing  a  corporation  is  incapable  of 
committing  the  offense  charged  in  the  indictment." 

The  court  announced  that  it  had  concluded  that  the 
indictment  was  not  authorized  by  the  act  of  1898,  and 
therefore  the  motion  to  quash  would  be  sustained.  Be 
fore,  however,  any  formal  entry  to  that  effect  wai 


n 

made,  in  order  to  obviate  any  question  of  double  jeop 
ardy,  upon  motion  of  the  attorney  for  the  United  Statea 
a  juror  was  withdrawn,  and  thereafter  a  judgment  was 
duly  entered  quashing  the  indictment,  it  being  ex 
pressly  recited  in  the  judgment  that  it  was  based  upon 
a  constriction  of  the  statute.  To  review  the  action  of 
the  trial  court  this  writ  of  error  is  prosecuted  by  the 
United  States,  under  the  authority  of  the  act  of  March 
2,  1907  (34  Stat.  1246). 

Mr.  Chief  Justice  WHITE,  ifter  making  the  foregoing 

statement,  delivered  the  opinion  of  the  Court. 
As  we  have  stated,  the  indictment  was  based  on  the 
act  of  July  7, 1898  (30  Stat.  717,  section  2).  The  effect 
of  the  act,  as  pointed  out  in  Franklin  v.  United  States, 
216  U.  S.  559,  568-9,  was  to  incorporate  the  criminal 
laws  of  the  several  States  in  force  on  July  1, 1898,  into 
the  statute,  and  to  make  such  criminal  laws  to  the  ex 
tent  of  such  incorporation  laws  of  the  United  States, 
The  text  of  the  second  section  of  the  act  of  1898  is 
this: 

'That  when  any  offense  is  committed  In  any  place,  jurisdic 
tion  over  which  has  been  retained  by  the  United  States,  or 
ceded  to  It  by  a  State,  or  which  has  been  purchased  with  the 
consent  of  the  State  for  the  erection  of  a  fort,  magazine,  arse 
nal,  dockyard  or  other  needfuil  building  or  structure,  the  pun 
ishment  for  which  offense  is  not  provided  for  by  any  law  of 
the  United  States,  the  person  committing  such  offense  shall 
upon  conviction  in  the  Circuit  or  District  Court  of  the  United 
States  for  the  district  in  which  the  offense  was  committed  be 
liable  to  and  receive  the  same  punishment  as  the  laws  of  the 
State  In  which  said  place  is  situated  now  provide  for  the  like 
offense  when  committed  within  the  jurisdiction  of  such  State, 
and  the  said  courts  are  hereby  vested  with  jurisdiction  for 
auch  purposes;  and  no  subsequent  repeal  of  any  such  State  law 
shall  affect  any  such  prosecution.  (30  Stat.  717.)" 

As  it  is  conceded  that  there  is  no  statute  of  the  United 
States  expressly  defining  and  punishing  the  crime  of 
criminal  libel  when  committed  on  a  United  States  res 
ervation,  etc.,  it  follows  that  in  order  to  determine  the 
correctness  of  the  ruling  of  the  court  below  we  are 
called  upon,  a,  to  accurately  fix  the  extent  to  which, 
by  the  effect  of  the  act  of  1898,  the  criminal  laws  of 
the  States  were  incorporated  therein  so  as  to  authorize 
the  punishment  of  crimes  defined  by  such  lawi  at  of- 


fenses  against  the  United  States,  and,  b,  this  being 
done,  to  make  an  analysis  of  the  criminal  laws  of  the 
State  of  New  York  to  ascertain  whether  the  particular 
offenses  here  charged  were  made  punishable  by  those 
laws,  and,  if  so,  whether  by  virtue  of  the  act  of  IbUS 
they  constituted  offenses  against  the  laws  of  the  United 
States  punishable  in  the  courts  of  the  United  States. 

It  is  certain,  on  the  face  of  the  quoted  section,  that 
it  exclusively  relates  to  offenses  committed  on  United 
States  reservations,  etc.,  which  are  "not  provided  for 
by  any  law  of  the  United  States,"  and  that  as  to  such 
offenses  the  State  law,  when  they  are  by  that  law  de 
fined  and  punished,  is  adopted  and  made  applicable. 
That  is  to  say,  while  the  statute  leaves  no  doubt  where 
acts  are  done  on  reservations  which  are  expressly  pro 
hibited  and  punished  as  crimes  by  a  law  of  the  United 
States,  that  law  is  dominant  and  controlling,  yet,  on 
the  other  hand,  where  no  law  of  the  United  States  has 
expressly  provided  for  the  punishment  of  offenses  com 
mitted  on  reservations,  all  acts  done  on  such  reserva 
tions  which  are  made  criminal  by  the  laws  of  the  sev 
eral  States  are  left  to  be  punished  under  the  applicable 
State  statutes.  When  these  results  of  the  statute  are 
borne  in  mind  it  becomes  manifest  that  Congress,  in 
adopting  it,  sedulously  considered  the  twofold  charac 
ter  of  our  constitutional  government,  and  had  in  view 
the  enlightened  purpose,  so  far  as  the  punishment  of 
crime  was  concerned,  to  interfere  as  little  as  might  be 
with  the  authority  of  the  States  on  that  subject  over 
all  territory  situated  within  their  exterior  boundaries, 
and  which  hence  would  be  subject  to  exclusive  State 
jurisdiction  but  for  the  existence  of  a  United  States 
reservation.  In  accomplishing  these  purposes  it  is  ap 
parent  that  the  statute  instead  of  fixing  by  its  own  terms 
the  punishment  for  crimes  committed  on  such  reserva 
tions  which  were  not  previously  provided  for  by  a  law 
of  the  United  States,  adopted  and  wrote  in  the  State 
law,  with  the  single  difference  that  the  offense,  although 
punished  as  an  offense  against  the  United  States,  was 
nevertheless  punishable  only  in  the  way  and  to  the 
extent  that  it  would  have  been  punishable  if  the  terri 
tory  embraced  by  the  reservation  remained  subject  to 


the  jurisdiction  of  the  State.  While  this  meaning,  we 
think,  stands  out  in  bold  relief  from  the  text  of  the 
section^  the  correctness  of  such  meaning  will  be  never 
theless  readily  demonstrated,  even  if,  for  the  sake  of 
argument,  it  be  conceded  that  tho  text  is  ambiguous. 
We  say  this  because  a  consideration  of  the  genesis  and 
development  of  the  legislation  which  the  act  of  1898 
embodies  will  leave  no  doubt  that  the  construction  we 
have  given  to  the  act  enforces  the  exclusive  and  only 
purpose  intended  to  be  accomplished  by  its  adoption.  * 
It  is  undoubted,  as  pointed  out  in  Franklin  v.  United 
States,  supra,  that  the  forerunner  of  the  act  of  1898 
was  the  act  of  March  3,  18251  (ch.  65,  4  Stat.  115), 
since  the  act  of  1898  is  virtually  a  repetition  of  the  act 
of  1825,  except  as  to  provisions  plainly  inserted  merely 
for  the  purpose  of  bringing  under  the  sway  of  the  act 
United  States  reservations  w.hich  on  account  of  the 
restrictive  terms  of  the  act  of  1825  were  not  embraced 
within  the  sphere  of  its  operations.  The  act  of  1825 
was  entitled  "'An  act  more  effectually  to  provide  for  the 
punishment  of  certain  crimes  against  the  United  States 
and  for  other  purposes."  Sections  1  and  2  of  the  act 
provided  for  the  punishment  of  arson  when  committed 
within  any  fort,  dockyard  and  other  enumerated  places, 
''the  site  whereof  is  ceded  to,  and  under  the  jurisdic 
tion  of,  the  United  States/'  The  third  section  was  as 
follows : 

"Sec.  3.  And  be  it  further  enacted,  That  if  any  offense  shall 
foe  committed  in  any  of  the  places  aforesaid,  the  punishment 
of  which  offense  is  not  especially  provided  for  by  any  law  of 
the  United  States,  such  offense  shall,  upon  a  'conviction  in  any 
court  of  the  United  States  having  cognizance  thereof,  toe  liable 
to  and  receive  the  same  punishment  as  the  laws  of  the  State  in  ) 
which  such  fort,  dockyard,  navy-yard,  arsenal,  armory  or  mag 
azine,  or  other  place,  ceded  as  aforesaid,  is  situated,  provide 
for  the  like  offense  when  committed  within  the  body  of  any 
county  of  such  State." 

This  section  came  under  consideration  in  United  States 
v.  Paul,  6  Pet.  141,  and  it  was  held  that  its  provisions 
referred  only  to  the  laws  of  the  States  existing  at  the 
time  of  the  passage  of  the  act,  that  is,  those  which  were 
in  force  on  March  3,  1825.  It  came  also  to  pass  that 
in  considering  the  words  "whereof  is  ceded"  in  the  first 
^action  it  was  held  that  those  words  limited  the  opera- 


74 

tion  of  the  act  to  places  v.  hich  iiad  been  ceded  to  the 
United  States  prior  to  the  enactment  of  the  act  of  1825. 
State  v.  Barney,  5  Blatch.  294- 

By  the  second  section  of  the  act  of  April  5,  1866  (ch. 
24,  14  Stat.  13),  Congress  substantially  re-enacted  the 
third  section  of  the  act  of  1825,  changing,  however,  its 
phraseology  so  as  to  cause  its  provisions  to  apply  not 
only,  as  did  the  act  of  1825,  to  a  place  ceded  to  the 
United  States,  but  to  "any  place  which  has  been  or 
shall  hereafter  be  ceded."  As  thus  adopted  the  act 
passed  into  the  Revised  Statutes  as  section  5391  and 
continued  in  force  until  the  passage  of  the  act  of  1898, 
which,  it  will  be  at  once  observed,  makes  no  substantial 
change  concerning  the  fundamental  scope  and  purpose 
of  the  prior  statute,  since  it  simply  enlarged  the  extent 
of  its  operation  by  causing  the  statute  not  only  to  em 
brace  reservations  which  had  been  ceded  to  the  United 
States,  but  those  which  had  been  carved  out  of  the 
public  domain. 

If  then  the  purpose  and  intent  which  led  to  the  enact 
ment  of  the  act  of  1825  can  be  discovered  and  made 
plain  it  must  clearly  result,  as  that  act  was  but  the 
precursor  of  the  act  of  1898,  that  the  light  generated 
by  the  original  intent  and  purpose  will  afford  an  effi 
cacious  means  for  discerning  the  intent  and  purpose  of 
the  act  of  1898.  The  basis  of  the  third  section  of  the 
act  of  1825  was  the  eleventh  section  of  a  bill  drawn  by 
Mr.  Justice  Story,  and  of  such  eleventh  section  its 
author  said  (Life  of  Justice  Story,  Boston,  1851,  vol.  1, 
p.  29-3): 

"This  is  the  most  important  section  of  the  whole  bill.  The 
criminal  code  of  the  United  States  is  singularly  defective  and 
inefficient.  .  .  .  Few,  very  few,  of  the  practical  crimes  (If 
I  may  so  isay)  are  now  punishable  by  statutes,  and  If  the 
courts  have  no  general  common  law  jurisdiction  (which  is  a 
vexed  question),  they  are  wholly  distpunishable.  The  State 
courts  have  no  jurisdiction  of  crimes  committed  on  the  high 
seas,  or  in  places  ceded  to  the  United  States.  Rapes,  arsons, 
batteries  and  a  host  of  other  crimes  may  in  these  places  be 
now  committed  with  impunity.  Suppose  a  conspiracy  to  com 
mit  treason  in  any  of  these  places,  by  civil  persons,  how  can 
the  crime  be  punished?  These  are  oases  where  the  United 
States  have  an  exclusive  local  jurisdiction.  And  can  it  be  IBSB 
fit  that  the  Government  should  have  power  to  protect  ItwlX 
in  all  other  places  wher«  it  exercisei  a  legitimate  authority? 


That  Congress  has  power  to  provide  for  all  crimes  against  the 
United  States  is  incontestable." 

It  is  certain  that  the  fundamental  purpose  thus  con 
templated  by  Mr.  Justice  Story  was  not  overlooked  or 
intended  to  be  departed  from  by  the  writer  of  the  act  of 
1825.  There  can  be  no  doubt  on  this  subject,  in  view 
of  the  fact  that  Mr.  Webster,  the  author  of  that  act, 
in  referring  to  the  third  section  of  the  bill  by  him 
drafted  and  reported  to  Congress  (which  section,  as  we 
have  said,  was  based  upon  the  eleventh  section  of  the 
bill  drawn  by  Mr.  Justice  Story),  said : 

"  'As  to  the  third  section,  it  must  'be  obvious  that,  where  the 
juiisdiction  of  a  small  place,  containing  only  a  'few  hundreds 
of  people  (a  navy-yard,  for  instance),  'was  ceded  to  the  United 
States,  some  provision  was  required  for  the  punishment  of  of 
fenses;  and  as,  from  the  use  to  which  the  iplace  was  to  ibe  put. 
some  crimeis  were  likely  to  ibe  more  frequently  committed  than 
others,  the  committee  had  thought  it  sufficient  to  provide  for  \ 
these,  and  then  to  leave  the  residue  to  be  punished  by  the  ilaws  V 
of  the  State  in  which  the  yard,  &c.f  might  <be.  He  was  persuaded 
that  the  people  would  not  view  it  as  any  hardship  that  the 
great  class  of  minor  offenses  should  continue  to  be  punished  in 
the  same  manner  as  they  had  been  before  the  cession.'  (Id. 
338.)" 

The  demonstration  of  the  purpose  and  scope  of  the 
act  of  1825  is,  if  possible,  made  clearer  by  an  amend 
ment  to  which  the  act  was  subjected  before  it  reached 
its  final  legislative  form.  As  originally  reported  the 
fourth  section  provided  for  the  punishment  of  certain 
designated  crimes  by  the  law  of  the  United  States  when 
committed  "upon  the  sea,  or  in  any  arm  of  the  sea,  or 
in  any  river,  haven,  creek,  basin  or  bay,  within  ^the 
admiralty  and  maritime  jurisdiction  of  the  United 
States."  But  this  provision  was  qualified  in  the  passage 
of  the  bill  by  the  adoption  of  an  amendment  which 
added  the  words,  "and  out  of  the  jurisdiction  of  any  ) 
particular  State."  This  amendment  as  finally  adopted 
was  the  result  in  a  somewhat  modified  form  of  a  prior 
amendment  offered  by  Mr.  Wickliffe  of  Kentucky.  It* 
meaning  is  not  left  to  doubt,  since  Mr.  Wickliffe  in 
urging  the  adoption  of  the  amendment  expressly  stated 
that  it  was  "intended  to  prevent  collisions  between  the  , 
authority  of  the  General  and  State  Governments. 
He  conceived  the  State  Government!  to  be  enti:-ely  > 
competent  to  inquire  into  and  punish  crimes  committed 


re 

within  their  own  jurisdiction,  and  that,  as  there  was 
no  necessity,  there  would  be  no  advantage  in  giving 
the  United  States  concurrent  power  to  do  the  same." 
Register  of  Debates  in  Congress,  Gales  &  Seaton,  1824- 
1825,  vol.  1,  p.  154;  Ib.  pp.  157,  165-166,  166-167, 
168,  335,  335h,  338. 

Having  fixed  the  meaning  of  the  act  of  1898,  and,  as 
heretofore  stated,  there  being  no  law  of  the  United 
States  specifically  punishing  the  offense  of  criminal  libel 
(when  committed  on  a  reservation,  etc.,  of  the  United 
*  States,  it  remains  only  to  determine  whether,  applying 
the  lav,  of  the  State  of  New  York,  in  accordance  with 
the  act  of  1898,  there  was  power  in  the  Grand  Jury  to 
present  the  indictment  here  under  consideration  or  au 
thority  in  the  courts  of  the  United  States  to  entertain 
jurisdiction  thereof  as  charging  a  substantive  and  dis 
tinct  offense  under  the  laws  of  the  United  States.  That 
is  to  say,  was  the  indictment  found  below  consistent 
\  with  the  application  of  the  State  law  in  accordance  with 
the  provisions  of  the  act  of  1898  ? 

The  provisions  of  the  penal  code  of  £Tew  York  on  the 
subject  of  criminal  libel  at  the  date  mentioned  were  as 
follows  (Laws  ISTew  York,  1881,  vol.  3,  chap.  8): 

"Sec.  243.  A  person  who  publishes  a  libel  is  guilty  of  a  mis 
demeanor. 

"Sec.  245.  To  sustain  a  charge  of  publishing  a  libel  it  is  not 
necessary  that  the  matter  complained  of  should  have  been  seen 
by  another.  It  is  enough  that  the  defendant  knowingly  dis 
played  it,  or  parted,  with  its  immediate  custody,  under  circum 
stances  which  exposed  it  to  be  seen  or  understood  by  another 
person  than  himself." 

Sections  249  and  250,  in  substance,  provided  that 
where  a  person  libeled  is  a  resident  of  the  State  the 
prosecution  shall  be  either  in  the  county  of  such  resi 
dence  or  the  county  where  the  paper  is  published,  and 
that  where  the  person  libeled  is  a  non-resident  the  pros 
ecution  shall  be  in  the  county  in  which  the  paper,  on  its 
face,  purports  to  be  published,  or,  if  it  does  not  so  indi 
cate,  in  any  county  in  which  it  was  circulated. 

"Sec.  251.  A  person  cannot  he  indicted  or  tried  for  the  publi 
cation  of  the  same  liibel,  against  the  same  person,  in  more  than 
one  county." 


TT 

Section   138   of   the    Code    of  Criminal  Procedure 

(Laws  of  £Tew  York,  1881,  voL  2,  p.  43)  contains  simi 
lar  provisions  as  to  the  place  for  the  prosecution  of  a 
libel,  and  the  immunity  from  liability  to  prosecution 
in.  more  than  one  county.  It  was  further  provided: 

"Sec.  139.  When  an  act  charged  as  a  crime  is  within  the  Juris* 
diction  of  another  State,  Territory  or  county,  as  well  as  within 
the  jurisdiction  of  this  State,  a  conviction  or  acquittal  thereof 
in  the  (former  Is  a  bar  to  a  prosecution  or  indictment  therefor 
in  this  State. 

"Sec.  140.  When  a  crime  is  within  the  jurisdiction  of  two  or 
more  counties  of  this  State,  a  conviction  or  acquittal  thereof  in 
one  county  is  a  bar  to  a  prosecution  or  indictment  thereof  in 
another." 

In  view  of  the  unity  between  the  act  of  composing  and  the 
primary  publication  of  a  newspaper  containing  a  libelous 
article  within  the  State  of  New  York,  and  of  subsequent 
publications  or  repetitions  thereof  by  the  publisher  of  the 
newspaper  which  are  clearly  the  resultant  of  the  provisions 
of  the  laws  of  New  York  above  quoted  and  referred  to,  two 
propositions  are,  we  think,  plainly  established:  Fit§t,  that 
adequate  means  were  afforded  for  punishing  the  circulation 
of  the  libel  on  a  United  States  reservation  by  the  State  law 
and  in  the  State  courts  without  the  necessity  of  resorting 
to  the  courts  of  the  United  States  for  redress.  Second,  that 
resort  could  not  be  had  to  the  courts  of  the  United  States 
to  punish  the  act  of  publishing  a  newspaper  libel  by  circulat 
ing  a  copy  of  the  newspaper  on  the  reservation  upon  the 
theory  that  such  publication  was  an  independent  offense, 
separate  and  distinct  from  the  primary  printing  and  pub 
lishing  of  the  libelous  article  within  the  State  of  New  York, 
without  disregarding  the  laws  of  that  State  and  frustrating 
the  plain  purpose  of  such  law,  which  was  that  there  should 
be  but  a  single  prosecution  and  conviction. 

These  propositions  being  true,  it  follows  in  the  light 
of  the  construction  which  we  have  given  the  act  of  1898 
that  the  court  below  was  right  in  quashing  the  indict 
ment  as  not  authorized  by  that  act.  2To  other  conclu 
sion  we  think  was  possible,  as  the  court  could  not  have 
sustained  the  indictment  without  giving  to  the  statute 


78 

a  meaning  directly  conflicting  with  the  construction 
which  we  have  affixed  to  it.  In  other  words,  the  court 
could  not  have  upheld  the  indictment  without  deciding 
that  because  the  statute  provided  that  acts  when  com- 
anitted  on  United  States  reservations,  which  were  not 
expressly  made  criminal  by  a  lav;;  of  the  United  States, 
might  be  prosecuted  and  punished  in  accordance  with  the 
State  law,  therefore  a  prosecution  was  authorized  which 
was  inconsistent  with  that  law  and  in  disregard  thereof. 
And,  further,  albeit  that  Congress  having  regard  for 

l_the  autonomy  of  the  States  had  deemed  it  best  not  to 
treat  reservations  within  States  as  foreign  to  the  States 
for  the  purpose  of  punishing  crime  unless  expressly 
provided  to  the  contrary,  nevertheless  the  legislation 
enacted  by  Congress  for  this  purpose  had  destroyed  the 
end  contemplated,  since  that  legislation  when  rightly 
construed,  while  applying  the  State  legislation  to  crimes 
committed  on  a  reservation  as  if  the  territory  was  not 
foreign  but  domestic,  at  the  same  time  exacted  that  the 
State  law  when  thus  applied  should  be  enforced  as  if 
the  territory  was  in  no  respects  for  the  purpose  domes 
tic,  but  on  the  contrary  was  wholly  foreign.  The  con 
tradiction  and  confusion  to  which  the  contention  thus 
reduces  itself  is  too  apparent  to  require  anything  but 
statement.  Indeed,  we  think  the  misconception  just 
pointed  out  lies  at  the  basis  of  all  the  propositions  so 
ably  pressed  at  bar  to  secure  a  reversal,  since  they  all 

»  depend  upon  a  construction  of  the  act  of  1898,  which 
we  hold  to  be  wrong.  Great  therefore  as  might  other 
wise  be  their  potency  with  the  foundation  gone  upon 
which  they  rest,  all  come  to  this,  that  the  statute  sanc 
tions  that  which  it  by  necessary  implication  prohibits, 
and,  moreover,  destroys  the  great  public  purpose  which 
its  adoption  was  intended  to  foster  and  protect. 

The  ruling  which  we  now  make  does  not  of  course 
extend  to  a  subject  which  is  not  before  us.  It  follows, 
therefore,  that  we  do  not  now  intimate  that  the  rule 
whi^h  in  this  case  has  controlled  our  decision  would  be 
applicable  to  a  case  where  an  indictment  was  found  in 

y  a  court  of  the  United  States  for  a  crime  which  was 
wiholly  committed  on  a  reservation,  disconnected  with 
acts  committed  within  the  jurisdiction  of  the  State,  and 


where  the  prosecution  for  such  crime  in  the  courts  of 
the  United  States  instead  of  being  in  conflict  with  the 
applicable  State  law  was  in  all  respects  in  harmony 
therewith. 

Affirmed. 


Tru«  copy. 


80 

COMMEJSTT  OF  THE  CHIEF  JUSTICE. 

As  Mr.  Chief  Justice  White  laid  down  the  printed 
copy  of  the  Court's  opinion  on  the  desk  before  him, 
having  finished  reading  it,  he  said : 

''It  would  be  impossible  to  sustain  this  prosecution 
without  overthrowing  the  very  State  law  by  the  author 
ity  of  which  the  prosecution  can  be  alone  maintained. 

"It  goes  further  than  that,  we  think.  It  is  manifest, 
when  the  text  of  the  law  is  considered,  and  its  historical 
evolution  is  borne  in  mind,  that  the  impelling  and  mo 
tive  power  for  its  adoption  was  the  sedulous  purpose  of 
Congress  to  respect  the  autonomy  of  the  States  and  not 
cause  every  reservation  situated  in  a  State,  if  Congress 
had  not  legislated  to  the  contrary,  to  become  distinct 
and  separate  foci  for  all  purposes  of  criminal  legisla 
tion,  conflicting  with  and  perhaps  antagonistic  to  ttw 
laws  of  the  States,  and  therefore  destructive  in  aspects 
of  the  very  fundamental  conceptions  upon  which  our 
Government  is  founded. 

"In  other  words,  we  think,  when  the  statute  is  rightly 
construed,  that  the  case  reduces  itself  to  this:  That  the 
State  law  must  be  applied  for  the  purpose  of  punishing 
the  crime,  and  in  order  to  accomplish  that  purpose  and 
make  it  effectual  the  State  law  must  not  be  disregarded 
by  which  alone  the  crime  can  be  punished ;  that  for  the 
purpose  of  punishing  the  crime  and  applying  the  State 
law  a  reservation  in  the  interior  boundaries  of  the  State 
is  to  be  considered  within  the  State,  and  yet  for  the 
purpose  of  executing  the  law  the  reservatipn  is  to  be 
considered  wholly  foreign  and  the  prosecution  conducted 
as  if  it  was  totally  beyond  the  confines  of  the  State. 

"For  this  reason,  we  think,  the  Court  below  was  right 
and  its  judgment  is  affirmed." 

BE  LANCET  NIOOLL'S  VIEW  OF  THE  CASE. 

Be  Lancey  Nicoll,  counsel  for  The 'World,  who  argued 
The  World  case  before  Judge  Hough  in  the  Circuit 
Court,  and  later  argued  the  appeal  before  the  Supreme 
Court,  when  informed  of  the  decision  of  the  Court  at 
hi?  home  in  !N"ew  York  that  night,  said: 

'The  decision  of  the  Supreme  Court  was  most  accepta/ble. 

"It  sustains  the  whole  contention  made  by  The  World  from 


81 

the  beginning;  that  the  Federal  courta  had  no  jurisdiction 
over  libels  first  printed  and  published  in  the  States,  and  that 
the  State  courts  were  the  proper  tribunals  for  those  to  resort 
to  who  had  the  time  and  inclination  to  vindicate  their  charac 
ters. 

"It  is  a  great  triumph  for  Mr.  Pulitzer  and  The  World! 

"A  President  of  the  United  States,  by  a  special  message  to 
Congress,  denounced  Mr.  Pulitzer  in  a  most  unprecedented  and 
unjustifiaible  way  and  instructed  the  Attorney-General  and  the 
District-Attorney  to  proceed  against  him  in  the  Federal  courts. 

"A  resort  was  had  to  an  ancient  statute  which  was  misin 
terpreted  to  suit  the  purposes  o,f  the  'Government. 

"It  was  New  Nationalism  run  mad! 

"Mr.  Pulitzer  saw  in  this  attempt  a  dangerous  and  deadly 
assault  upon  the  liberty  of  the  press — an  attempt  to  control 
it  by  the  colossal  power  of  the  Federal  Government.  He 
determined  to  make  a  fight  against  it,  not  on  his  personal 
account  alone,  but  because  of  the  great  principle  involved. 

"The  victory  belongs  to  Mr.  Pulitzer  and  to  The  World, 
for  it  is  no  exaggeration  to  say  that  if  the  contention  of  the 
Government  had  been  sustained  one  of  the  foundations  of 
our  liberty  would  have  been  destroyed. 

"A  free  government  cannot  exist  without  a  free  press." 

WHAT  FORMER  UNITED  STATES  ATTORNEY 
JOSEPH  B.  KEALING  HAD  TO  SAY. 

Joseph  B.  Kealing,  a  leader  of  the  Republican  party 
in  Indiana  and  former  United  States  District-Attorney, 
by  appointment  from  President  Roosevelt,  who  resigned 
his  commission  rather  than  prosecute  the  proprietors  of 
the  Indianapolis  News  on  its  indictment,  said  that  night 
at  his  home  in  Indianapolis: 

"The  decision  in  the  New  York  World  case  is  very  similar  to 
the  decision  in  the  News  case  rendered  by  Judge  Anderson. 
It  sustains  my  point  made  w<hen  I  resigned,  that  there  was  no 
ground  for  bringing  such  action  in  the  Federal  court  in  hopes 
of  dragging  the  proprietors  of  the  News  and  The  World  to 
Washington  for  trial  on  alleged  offenses  they  had  not  com 
mitted  there. 

"I  could  not  proceed  with  such  a  case  when  it  was  apparent 
that  there  was  such  a  great  principle  at  stake  and  that  an 
injustice  was  being  attempted. 

"The  decision  of  the  Su-preme  Court  certainly  riddlea  the 
efforts  of  Mr.  Roosevelt  to  make  a  case  against  the  proprietors 


ol  the  News  and  The  World  at  Washington.  It  Is  also  a  vindi 
cation  of  Judge  Andereon  that  will  be  received  with  very  great 
pleasure  throughout  Indiana,  in  view  of  the  things  said  about 
him  by  Mr.  Roosevelt  on  his  visit  here  during  the  recent  cam 
paign." 


SOLICITOR-GENERAL  LETTMANJST  DECLARED 
THE  DECISION  "SOUND  LAW." 

Frederick  W.  Lehmann,  Solicitor-General  of  the 
United  States,  said  at  his  home  in  Washington  that 
night  of  the  decision  of  the  United  States  Supreme 
Court  in  favor  of  The  World: 

"I  sat  In  the  Supreme  Court  room  this  afternoon  and  listened 
with  great  interest  to  the  Chief  Justice  as  he  rendered  his 
decision  in  the  case  of  libel  attempted  to  be  brought  on  Federal 
reservations  against  the  New  York  World.  The  decision  of  the 
Court  impressed  me  as  sound  law." 


COL.  KOOSEVELT  HAD  ^OTHING  TO  SAY." 

Col.  Roosevelt,  though  given  every  opportunity  that 
night  by  a  reporter  of  The  World,  who  went  to  his 
home  at  Oyster  Bay  to  give  his  opinion  of  the  decision, 
contented  himself  by  saying  and  reiterating:  "I  have 
nothing  to  say." 


ROOSEVELT'S  COOTESSIOK 

Later,  during  his  trip  to  the  Pacific  coast,  ox-Presi 
dent  Roosevelt,  in  a  speech  to  the  students  of  the  Uni 
versity  of  California  at  Berkeley,  Cal.,  on  March  23, 
19<117  said: 

"I  am  interested  in  the  Panama  Canal  because  I  started 
it.  If  I  had  followed  traditional  conservative  methods  I 
should  have  submitted  a  dignified  state  paper  of  probably 
two  hundred  pages  to  the  Congress  and  the  debate  would 
have  been  going  on  yet.  But  I  took  the  Canal  Zone  and  let 
Congress  debate,  and  while  the  debate  goes  on  the  canal 
does  also." 


NO  LESE-MAJESTY- 
NO    PRESIDENTIAL    MUZZLING 
OF  THE  PRESS 


[EDITORIAL  IN  THE  WORLD,  JAN.  4.   1911.] 

There  is  no  Federal  libel  law  to  mu^le  American  news 
papers.  Freedom  of  the  press  does  not  exist  at  the  whim 
or  pleasure  of  the  President  of  the  United  States.  It  is  at 
the  mercy  of  no  ltsteward  of  the  public  welfare"  The 
rights  and  powers  and  authority  of  the  States  cannot  be 
taken  over  by  a  usurping  Federal  Government. 

This  is  the  meaning  of  the  unanimous  decision 
handed  down  by  the  United  States  Supreme  Court  yes 
terday  in  the  Koosev.elt-Panauia  libel  case  against  The 
World.  It  is  the  most  sweeping  victory  won  for  freedom 
of  speech  and  of  the  press  in  this  country  since  the  Amer 
ican  people  destroyed  the  Federalist  party  more  than  a 
century  ago  for  enacting  the  infamous  Sedition  law. 

In  unanimously  sustaining  Judge  Hough's  decision 
quashing  the  Koosevelt  indictments  against  The  World 
on  the  ground  that  the  Federal  Government  had  no 
jurisdiction,  the  Supreme  Court  upholds  every  conten 
tion  advanced  by  The  World  since  the  outset  of  this 
prosecution.  In  resisting  the  Federal  Government's 
claim  to  jurisdiction  The  World  has  sought  to  shirk 
none  of  its  legal  obligations.  It  has  raised  no  question  as 
to  the  complete  and  absolute  responsibility  of  every 
newspaper  to  the  libel  laws  of  the  State  in  which  it  is 
published,  no  matter  how  drastic  those  laws  may  be.  It 
admits  such  responsibility,  it  accepts  such  responsibility 
and  cheerfully  abides  by  it. 

While  believing  that  the  Panama  articles  printed  in 
The  World  libelled  nobody,  we  should  have  welcomed 
a  trial  of  that  issue  on  its  merits  had  the  case  been 
brought  in  the  State  courts  of  New  York  by  Mr.  Roose 
velt  or  any  other  person  who  considered  himself  ag 
grieved.  There  was  no  issue  here  between  liberty  of 
the  press  and  license  of  the  press.  The  courts  of  this 
State  are  open  to  every  person  who  believes  that  he  has 
been  wantonly  wronged  by  a  newspaper,  whether  he  be 
a  ditch-digger  or  a  President.  The  laws  of  this  State 
are  adequate.  All  the  nominal  complainants  in  the 


86 

Roosevelt-Panama  libel  indictments  against  The  World 
could  have  appealed  to  the  New  York  courts,  but  no 
such  appeal  was  ever  made. 

Instead  Mr.  Roosevelt  as  President  sought  to  estab 
lish  the  doctrine  of  lese-majesty.  When  The  World 
demanded  a  Congressional  investigation  to  ventilate 
the  purchase  of  the  Panama  Canal  properties  from  the 
bankrupt  French  company,  he  sent  a  special  message  to 
Congress  declaring  that  The  World's  news  reports  were 
"a  libel  upon  the  United  States  Government,"  that  Mr. 
Pulitzer  "should  be  prosecuted  for  libel  by  the  Govern 
ment  authorities"  and  that  "the  Attorney-General  has 
under  consideration  the  form  in  which  the  proceedings 
against  Mr.  Pulitzer  shall  be  brought." 

In  the  New  York  proceeding  the  Roosevelt  indict 
ment  was  brought  under  an  act  of  Congress  passed  orig 
inally  in  1825  "to  protect  harbor  defenses  and  fortifica 
tions  constructed  or  used  by  the  United  States  from  mali 
cious  injury,  and  for  other  purposes" 

Federal  jurisdiction  was  claimed  by  Mr.  Roosevelt  and 
Attorney-General  Bonaparte  under  the  pretext  that  the 
regular  circulation  at  West  Point  of  29  copies  out  of 
382,410  of  The  World  containing  certain  Panama 
news  articles,  and  the  sending  of  1  copy  free  to  a  Post- 
Office  inspector  in  the  Government  Building  in  New 
York  City  in  compliance  with  the  postal  regulations, 
constituted  the  publication  of  a  libel  in  these  reserva 
tions,  and  that  under  this  statute  the  Federal  Govern 
ment  should  criminally  prosecute  The  World. 

Mr.  Roosevelt's  Attorney-General  Bonaparte  through 
Mr.  Roosevelt's  District-Attorney  Stimson  advanced  the 
further  proposition  that  such  prosecution  should  be  car 
ried  on  "in  a  number  of  distinct  and  independent  juris 
dictions"  and  that  "in  each  of  these  jurisdictions,  under 
well-known  principles  of  law,  each  of  these  publications 
would  constitute  a  separate  offense"  As  there  are  no 
fewer  than  2,809  reservations  corresponding  in  general 
to  West  Point  and  the  Federal  Building,  there  is  no 
newspaper  in  the  United  States  which  would  not  have 
been  subject  to  Federal  prosecution  for  libel  under  thii 
Roosevelt  theory  of  the  law.  A  newspaper  of  large  cir 
culation  might  have  been  indicted  in  all  these  juriadic- 


87 

tions  by  command  of  the  President  for  an  article  that 
was  neither  written  nor  printed  in  any  of  them. 

There  are  few  newspapers  in  the  United  States  which 
could  not  be  ruined  financially  by  the  mere  legal  ex 
pense  of  having  to  defend  themselves  in  "a  number  of 
distinct  and  independent  jurisdictions."  Whenever  the 
President  of  the  United  States  wished  to  destroy  a 
newspaper  that  had  offended  him  by  political  criticism 
lie  would  have  had  only  to  compel  it  to  match  its  scanty 
resources  against  the  vast  resources  of  the  United  States 
Government.  He  would  have  had  only  to  employ  the 
process  that  Mr.  Roosevelt  used  against  The  World 
when  he  gave  his  orders  to  the  Attorney-General,  who 
gave  his  orders  to  the  District-Attorney,  who  told  the 
Grand  Jury  to  indict — and  the  Grand  Jury  indicted. 
All  the  National  Government's  tremendous  machinery 
of  prosecution  could  be  set  in  motion  at  the  command 
of  a  President  like  Theodore  Roosevelt,  without  regard 
to  constitution  or  law  or  justice  or  anything  except  the 
personal  and  political  resentment  of  a  vindictive  Exec 
utive  . 

This  was  the  real  issue  involved  in  the  Roosevelt  pro 
ceedings,  and  in  resisting  the  claim  of  Federal  jurisdic 
tion  The  World  was  fighting  to  preserve  not  only  its 
own  constitutional  rights  but  the  constitutional  rights 
of  every  newspaper  published  in  the  United  States.  It 
was  fighting  to  maintain  constitutional  guarantees  with  - 
ont  which  there  can  be  no  free  and  full  discussion  of 
any  national  political  question  in  this  country — without 
which  political  liberty  exists  only  at  the  pleasure  of  an 
elective  Autocrat. 

For  this  reason  The  World  felt  that  it  should  not  rest 
content  with  Judge  Hough's  decision  of  Jan.  26,  1910. 
quashing  the  Roosevelt  indictments  in  the  United  States 
Court  for  the  Southern  District  of  ~N"ew  York.  Judge 
TTough  himself  suggested  that  the  way  was  open  to  a 
speedy  appeal  to  the  United  States  Supreme  Court.  The 
World  urged  President  Taft  and  Mr.  Wickershara  ^to 
make  such  appeal  in  order  that  the  vital  question  in 
volved  mie'ht  be  decided  "by  the  final  interpreter  of  the 
Constitution.  It  was  in  response  to  The  World's  edi 
torials  that  the  appeal  was  taken  at  the  last  moment, 


88 

and  in  carrying  this  case  to  the  court  of  last  resort  Mr. 
Taft  and  Mr.  Wiekersham  rendered  a  notable  service 
to  the  cause  of  American  liberty. 

The  decision  of  the  Supreme  Court  is  so  sweeping  that 
•no  other  President  will  be  tempted  to  follow  in  the 
footsteps  of  Theodore  Roosevelt,  no  matter  how  greedy 
he  may  be  for  power,  no  matter  how  resentful  of  oppo 
sition.  No  other  Attorney-General,  however  subservi- 
ont,  will  pretend  that  a  Federal  libel  law  can  be  created 
by  Executive  interpretation  or  construction.  No  other 
District- Attorney  will  win  a  nomination  for  Governor 
of  New  York  by  making  himself  the  willing  tool  of  a 
President  in  such  an  attack  upon  constitutional  guaran 
tees  and  liberties,  No  other  Administration  will  assert 
that  the  freedom  of  the  press  is  a  Presidential  privilege 
and  not  a  constitutional  right. 

As  Do  Lancey  Nicoll,  The  World's  counsel,  said  in 
his  argument  before  the. Supreme  Court: 

As  a  matter  of  fact  this  prosecution  is  premature.  It  is  born 
before  its  time.  It  (belongs  to  that  new  dispensation  -when  the 
Federal  Government  shall  have  taken  to  itself  all  power  and 
all  authority,  When  the  States  shall  have  been  reduced  to  mere 
geographical  divisions  of  the  national  domain,  and  when  Fed 
eral  tribunals  shall  no  longer  decide  cases  in  accordance  with 
•precedent  and  authority  and  the  Haw  of  the  land,  but  in  accord 
ance  with  the  need  and  spirit  of  the  time  as  they  may  be  inter 
preted  by  some  great  steward  of  the  public  welfare. 

Tt  was  indeed  premature.  With  the  smashing  of  the 
New  Nationalism  at  the  November  elections  comes  the 
smashing  of  the  Roosevelt  doctrine  of  lese-majesty  and 
the  smashing  of  the  Roosevelt  doctrine  of  Nullification 
by  the  highest  tribunal  of  the  nation.  We  are  still  liv 
ing  under  a  government  of  laws  and  not  of  men.  We 
are  still  living  under  the  old  Constitution  as  interpreted 
by  the  Supreme  Court  of  the  United  States,  not  under 
the  New  Nationalism  as  interpreted  by  some  "steward 
of  the  public  welfare'7  in  Washington. 

The  great  constitutional  issue  involved  in  the  Iloose- 
volt  libel  proceeding  against  The  World  is  settled  for 
all  time.  The  freedom  of  the  press  is  established  be 
yond  the  power  of  Federal  usurpation.  As  for  the  Pan 
ama  matter  itself,  The  World  in  due  season  will  present 
the  evidence  in  its  possession  to  the  Congress  of  the 
United  States  and  renew  its  demand  for  a  searching  in 
vestigation. 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 
Renewed  books  are  subject  to  immediate  recall. 


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[UN  29  -SB    9RGj) 

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Berkeley 


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